Part II: Professional/Int’l Athletics

PART I: OLYMPIC & INTERNATIONAL SPORTS RULES & PROCEDURES

The Olympic Movement

1. Int’l Olympic Committeea. Non-profit, non-governmental organization under Swiss lawb. IOC possesses the rights ot and governs the operations of the Olympics and is the final

authority on all questions 2. National Olympic Committee

a. Exists for each country participating in the Olympics b. Typically provide for internal dispute resolution procedures/arbitration c. Have adopted the World Anti-Doping Code, which has the force of int’l lawd. USOC is the American NOC

Adjudication of Olympic-Related Disputes

3. Reynolds v. Int’l Amateur Athletic Federation a. Athlete sued the IAAF in court for breach of k and defamation after positive drug test

i. IAAF did not show up to court, athlete obtained default judgment against IAAFii. Stated that the court lacked personal and subject matter jurisdiction

b. Holding: Defects in personal jurisdiction are not waived by default when a party fails to appear or to respond

i. IAAF is based in England and owns no property/transacts no business in Ohioii. Even if IAAF purposefully availed itself of Ohio, urine sample was taken in

Monaco, analyzed in France, arbitrated in Englandiii. No bases for finding personal jurisdiction in Ohio

4. Walton-Floyd v. USOCa. Athlete alleged that the USOC negligently misrepresented the nature of a drug when

athlete made an inquiry about it on the USOC’s drug hotline i. Athlete called hotline and was told the inquired drug was not on the banned list

ii. She later failed the drug test, and the drug that caused it was what she inquired b. Holding: There is no implied private right of action under Amateur Sports Act

i. USOC did not owe athlete a duty to act under common law 5. Athletes Options

a. Limited judicial remedies existb. Strong emphasis on resolving int’l/Olympic disputes through internal administrative

procedures and arbitration

Arbitration of Olympic Disputes

1. Amateur Sports Acta. Requires that the USOC create a dispute resolution process that entitles an athlete to

appeal to the American Arbitration Association for final, and nonbinding arbitration i. However, the int’l federation may not recognize the decision

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2. Olympic Chartera. Since 1995, any dispute arising on the occasion of or in connection w/ the Olympic

games shall be submitted exclusively to the Court of Arbitration for Sportb. All athletes agree to this as a condition of Olympic participation and waive their rights to

national courts c. Also deals with all appeals after internal remedies exhausted

3. Lindland v. USA Wrestling a. Athlete moved to have arbitrator’s award enforced when the USAW refused to honor it

i. Athlete protested result of match, arbitrator ruled a rematch, which he wonii. Court held that athlete was entitled to that arbitrator’s decision.

iii. USAW then initiated a 2nd arbitration, which ruled counter to 1st arbitrator b. Holding: Stevens Act does not authorize arbitration about the propriety of another

arbitrator’s decision. An arbitrator is not empowered to re-determine the merits of any claim already determined.

i. Once the 1st arbitrator’s award was confirmed by the Court, it was no longer simply the view of a fellow arbitrator could disagree

ii. The 2nd arbitration cannot be confirmed bc the entire proceeding was ultra vires and the award violates the Commercial Rules of the American Arbitration Assoc.

4. Arbitration – Antidoping Agency and Tim Montgomery5. Arbitration – Vlasov and ATP Tour 6. Arbitration – Landis v. Antidoping Agency

Olympic Trademark and IP Issues; Commercialism

1. Amateur Sports Acta. Congress conferred the USOC exclusive trademark rights to the Olympic name, symbol,

derivative words, and the mottob. USOC also grated exclusive rights to license commercial and promotional use of

Olympic trademarks to raise funds and support for US participation in games 2. O-M Bread v. USOC

a. O-M Bread (trademark holder) claimed that it had registered the mark “Olympic Kids” for its bakery goods

i. Registered “Olympic” trade mark before the exclusive right to use “Olympic” was given to the USOC – but allowed preexisting rights to be grandfathered in

ii. O-M moved to register “Olympic Kids” but was opposediii. Board held the grandfathered rights did not extend to registering “Olympic Kids”

b. Holding: The protection granted to the USOC’s use of the Olympic words and symbols differs from the normal trademark protection in that it is not necessary to prove that a contested use is likely to cause confusion

i. Rights of prior users are protected from diminution but they are also restricted from enlargement

ii. Board was correct in finding that “Olympic” and “Olympic Kids” are different marks, thus O-M bread was restricted

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3. USOC v. Xclusive Leisure a. USOC sued Xclusive for trademark infringement, alleging Xclusive set up a ticket

website to sell tickets to the 2008 Beijing Olympics and used the USOC’s trademarks in order to lend authenticity to its website, when it did not have the authority to do so.

b. Holding: Court applied the eight-factor test and found that Xclusive’s use of the trademarked Olympic rings and the name "Olympic" was likely to confuse the reasonably prudent consumer into believing its website was official when, in fact, it was not

i. USOC’s trademarks were strong and that Xclusive’s use of the Olympic marks were nearly identical or identical to the USOC’s marks, while offering the same offered by the USOC, making them highly related

ii. Xclusive’s intent in using the USOC’s marks were in bad faith, as it was using these marks similar to the USOC’s marks in order to deceive consumers into believing that they were purchasing "official tickets"

4. Non-Commercial Use Exceptiona. Use of the Olympic name in protesting the conversion of former facilities to a prison was

held not to violate any trademark, because:i. Nothing was commercially sold, and

ii. Not likely to confuse as an endorsement of the USOC

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PART II: ENFORCEMENT OF SPORTS CONTRACTS

The Law of Contracts

1. Enforcing Player Contracts a. If the words are not ambiguous, the plain meaning rule prohibits judicial construction

i. Declaratory judgment calling for judicial construction of k provisions may be maintained where k language is ambiguous

b. Courts regularly enforce negative covenants, prohibiting the players from performing for another team during the k period (negative injunction), but not specific performance

i. Requires “irreparable harm,” usually determined by “unique skills”ii. Individualized, factual determination

iii. Some Courts require proof of D (potential) performance w/ direct econ competitor 2. Action for Reformation

a. Requires a showing of mutual mistake, misrepresentation, fraud, duress, or other misconduct; Plaintiff bears burden by clear and convincing evidence

3. Threshold Question: Personal Jurisdictiona. Ballclub possibilities in filing against player…

i. Player’s permanent residenceii. Player’s temporary residence

iii. Situs of player-team negotiationsb. Player-plaintiff possibilities in choosing appropriate forum for litigation

i. State where games are playedii. State where revenues are derived

iii. State in which club is incorporated iv. State where team is officed v. State featuring broadcasts or recruiting efforts

4. Minnesota Muskies v. Hudsona. Player had negotiated and agreed to a k to play basketball for Minnesota while still under

k w/ St. Louis, and then chose to remain in St. Louisb. Holding: The doors of a court of equity are closed to one tainted with unfairness or

injustice relative to the matter in which he seeks reliefi. Minnesota knew the player was under a moral obligation to play for St. Louis

when they induced him to repudiate his agreement ii. Minnesota is tainted w/ unclean hands, and has no means of judicial relief

5. Munchak Corp. v. Cunninghama. The owners and operators of a basketball club could not enforce an exclusive services

provision in player’s contract because they allegedly had “unclean hands”i. Player negotiated w/ owner during his option year while playing for another team

ii. Agreed to exclusively play for Owner when current k expired b. Holding: Competitor who solicits his competitor’s EEs, or who hires away one of his

competitor’s EEs who are not under k, has committed no actionable wrong so long as the inducement to leave is not accompanied by unlawful action

i. Player was under no obligation to his former team when he signed w/ Owner ii. Owner had a lawful right to bid and k for his services

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6. Dallas Cowboys v. Harris a. Cowboys sued to prevent player from playing for another team, but the jury ruled that

player did not have exceptional or unique knowledge or skillb. Holding: Negative covenants will be enforced in a personal services k if the EE is a

person of exception and unique knowledge, skill, and ability in performing the service called for in the k

i. In these player k, preponderance of evidence almost always shows that player did possess exception and unique knowledge, skill, and ability

Grievance Arbitration

1. Grievance Arbitration in Professional Sports a. Governed and otherwise established by the terms of k agreements, including collective

bargaining (termed, “labor” arbitration)i. Arbitration in other contexts is “commercial” arbitration

ii. Ex. Resolution of disputes between member clubs is “commercial”b. Court may overturn an arbitrator’s ruling only when the arbitrator has strayed from

application of the agreement and dispensed his own brand of industrial justice i. In disciplinary cases, arbitrator deems whether “just cause” exists to support the

imposition of discipline for a particular offense, and degree of penalty imposed2. MLBPA v. Garvey

a. Player filed a claim requesting compensation for injuries due to collusion. The court of appeals overturned an arbitrator’s judgment and granted compensation.

b. Holding: Courts are not authorized to usurp an arbitrator’s role by reviewing an arbitrator’s decision on the merits, resolving the dispute and barring future proceedings despite allegations that the arbitrator’s decision rests on factual errors or misinterprets the parties’ agreement.

i. Even when the arbitrator’s decision may be properly vacated (like here), the court should vacate the award and remand for further arbitration.

ii. Serious error by the arbitrator does not justify overturning his decision when construing a k and acting w/in scope of his authority

iii. Court is not allowed to resolve the merits of the parties’ dispute on the basis of its own factual determinations

3. Dyer v. LA Rams a. Player was under k to play for the Rams and sued the Rams for removing him from the

active roster in violation of his k. The Rams sought to compel arbitration, as under his k. i. Player alleged that the k was unconscionable bc all arbitration decisions could

ultimately be vested in the league commissioner b. Holding: When deciding whether to compel or deny arbitration, courts confine their

inquiry to a few threshold issues and do not scrutinize the agreed-upon arbitration provisions for general fairness.

i. Possibility of Commissioner intervention was a remote – indeed speculative – possibility and did not preclude enforcement of the arbitration provision

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4. Morris v. NY Football Giants a. Player disputed the amount of salary he was due for pre-season services following

termination of his k; Giants sought to compel arbitration on the issue. i. Morris claimed the arbitrations clause was unenforceable adhesion k

b. Holding: Where K were fairly negotiated and the arbitration clause was not unreasonably favorable to one side, an arbitration clause is enforceable

i. Player was highly paid, sophisticated athlete w/ considerable bargaining power and represented by experienced counsel – bound to k

5. Nordstrom v. NLRBa. Team challenged the award of back pay made by the NLRB

i. Player unlawfully released from his k to play with the Seahawks bc he engaged in union related activities; Team disputes amount of back pay awarded

b. Holding: The NLRB is authorized to award back pay in order to remedy the effects of unlawful discrimination – supported by substantial evidence

6. Injury Grievance Arbitration – Summary

Baseball Salary Arbitration

1. Single arbitrator selects either the offer of the club or players, considering relevant evidence as specified in the collective bargaining agreement (final offer process)

a. Each side submits its offer or demand in the form of a one-year nonguaranteed salary figure – no compromise or other modification to the figures

b. No opinion is released, just the result c. Player or team can initiate the process, player may refuse to arbitrate and the matter is

removed from arbitration 2. Generally, players w/ at least 3 years of major league service, however accumulated, but with

less than 6 years experience are eligible for arbitration a. Players w/ 6 or more years who do not qualify for free agency, may elect arbitration

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PART III: NEGOTIATION OF SPORTS CONTRACTS

Negotiation Theory

1. Structure of the Conflict a. The more one party receives, the less the other receives or the more the other gives b. Stereotypical sale scenarios is often used to depict a zero-sum game c. Both parties attempt to ascertain the other’s “reservation price” (min/max amounts)

2. Best Alternative to Negotiated Agreement (BATNA)a. The standard against which any proposed settlement is measured

i. Deal must be better than the BANTA in lieu of the agreement ii. Otherwise, the deal is unfavorable to your client

b. Knowing of the BATNA of your client protects against a bad deal; essential to negotiate3. Shadow of the Law

a. The uncertainty of litigation exists as an incentive to bargain rather than adjudicate b. Dynamics of negotiation reflect the structure of the process established by the law

Negotiation of the Player-Team Contract

1. Shadow of the Law a. The CBA controls in any conflict with the uniform/standard player kb. The uniform player k is paramount to the league constitutions and governing docs

2. Economic Realities a. Economics of the leagues and of respective teams set the boundaries for employment

negotiations between players and management b. Attorneys negotiating for players or ballclubs must learn the parameters of the sport

3. Use of Player Association Resources by Player Agent a. An efficient agreement cannot be reached unless both parties possess and utilize adequate

data, according to traditional negotiation theory 4. Salary Matters

a. Representatives of both parties to the negotiation must possess complete data concerning the salary structure established by thee CBA

5. Bonuses a. Signing or reporting bonusb. Roster bonusc. Incentive and honor bonus

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PART VI-I: LABOR RELATIONS IN PROFESSIONAL SPORTS

Collective Bargaining – Generally

1. Collective Bargaininga. Process by which a group of workers of an industry negotiate as a collective whole w/ the

management to determine working conditions, benefits, and salary of the industry b. Governed by the National Labor Relations Act

2. NLRAa. Workers involved in interstate commerce, including pro teams, covered by NLRAb. Section 7 provides three rights of labor relation:

i. Right to self organize, to form, join, or assist labor organizationsii. The right to bargain collectively through representative of own choosing

iii. Right to engage in concerted activities for EE’s mutual aid or protection 1. Unionize, collective bargaining, pressure tactics, etc…

c. Scope of Bargaining under NLRAi. Includes wages, hours, and working conditions

1. Pay, fringe benefits, bonuses 2. Time spent on the job3. Work rules, safety, and seniority

ii. These are mandatory subjects of bargaining and must be negotiated in good faith

Antitrust Law, Labor, and the Nonstatutory Exemption

1. Statutory Labor Exemption a. Removes from the coverage of the antitrust laws certain legitimate, albeit

anticompetitive, union activities bc they are favored by federal labor policy i. Protected activities include secondary picketing and group boycotts

ii. Union activities in furtherance of its own interests are exempt from reach of antitrust laws

b. Statutory exemption does not extend to agreements or actions between unions and non-labor groups, including Employers

2. Non-Statutory Labor Exemption a. Excepts certain anticompetitive union-employer activities from antitrust liabilityb. Union-ER agreement must meet 3 requirements to qualify for exemption:

i. Restraint of trade primarily affects only the parties to the CBAii. Agreement concerns a mandatory subject of collective bargaining

iii. Agreement is a bona fide arm-length bargaining c. Nonstatutory labor exemption continues not only beyond the expiration of the current

CBA, but also beyond the impasse in labor negotiations

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Labor Relations Issues

1. Brown v. Pro Football a. Brown alleged that PF violated the Sherman Act in negotiating with the players union

when the PF club owners agreed among themselves to implement their last best bargaining offer

b. Holding: Antitrust liability is waived for restraints on competition imposed through the collective bargaining process, past impasse, so long as the restraints operate primarily in a labor market characterized by collective bargaining

i. Football players must abide by the same rules as organized workers (labor laws)ii. Implicit antitrust exemption applies to the ER conduct here bc that conduct took

place during and immediately after a collective bargaining negotiationiii. Only by an act of decertification of the union are workers able to utilize antitrust

2. Mackey v. NFLa. Mackey alleged that the NFL’s Rozelle Rule was invalid and its enforcement

unreasonably restrained trade i. Rule required that whenever a player signed a k w/ a different club,

Commissioner would select and award a player of the acquiring team to the former club of the player

b. Holding: Restraint of competition does not violate the law if it is justified by legitimate business purposes, and is no more restrictive than necessary

i. Rozelle Rule unreasonably restrained trade, more restrictive than necessary to fulfill club’s alleged need to recoup player development costs

3. Robertson v. NBAa. Robertson alleged that a proposed merger of the NBA and ABA would violate Sherman b. Holding: Activities of ERs are not exempt from application of the antitrust laws, only

labor or union activities are exempti. Since the practices under attack here are not mandatory subjects of bargaining and

the NBA had not acted jointly with any labor organization, it would not be covered by the labor exemption

ii. Merger was anticompetitive and halted 4. Arbitration between MLBPA and Clubs

a. Changes to Rules 3 and 4 were inconsistent w/ the bargain the parties made in 1990i. Amendments are violative of the pledge embodied in Article XVIII, cannot stand

1. Makes no difference whether the draft rules are mandatory or only a permissive subject of bargaining

ii. Whatever Board law may be with respect to the basis for finding an unfair labor practice, the Clubs have no contractual right to change a subject of bargaining by amendment of the ML rules, even if the subject is permissive

1. As long as the k link between draft choice compensation and free agency continues, unilateral changes in the draft rules are permissible only when the Association, after due notice of the proposed change as Article XVIII requires, fails to object

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5. Silverman v. MLB Player Relationsa. MLBPA sought an injunction against Major League owners alleging that they committed

unfair labor practices by taking unilateral action to eliminate the free agency system and arbitration

b. Holding: Issues regarding the free agency system and salary arbitration are mandatory parts of the collective bargaining process between MLB players and owners

i. Mandatory issues require bargaining in good faith, permissive subjects are notii. Mandatory subjects include wages, hours, and other t&c of employment

6. Clarett v. NFLa. SA tried to bypass NFL eligibility rules and enter the draft after his sophomore year,

before the prerequisite 3 years out of HS had been met i. Because CBA creates relationship between NFL and NFLPA that prohibits teams

from negotiating directly with players, so Clarett claimed this reduced the competitive market and violated antitrust

b. Holding: Eligibility rules are immune from antitrust scrutiny under the non-statutory labor exceptions and can only be scrutinized under labor law

i. If NFLPA wanted to change eligibility, they could have done so in CBA

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PART IV-II: LEAGUE DECISION MAKING & COMMISSIONER POWER

Sports League Operations – Fundamental Characteristics

1. League-Club Relationshipa. Clubs of a league are joined together, and with the league, pursuant to the terms of a

Constitution and By-lawsb. Enjoy a contractual relationship and are governed by the law of torts in their interactions,

including decisions made by league directorsi. Traditional approach of litigants ad the resulting judicial scrutiny focuses on

contract and tort claims, including fiduciary duties c. League constituent members possess distinct duties to protect market opportunities of the

league as a whole, as well as protect individual club operations

Baseball Antitrust Exemption

1. Curt Flood Act of 1998a. MLBPA and MLB encouraged Congress to seek removal of the exemption as it relates to

major league labor markets i. Exemption originally held that baseball was not subject to reach of the antitrust

laws, bc it was in the business of giving exhibitions, no interstate commerceb. Removal of the exemption in this context enables MLB players to enjoy the same rights

under antitrust laws as do other professional athletes i. Rights of non-baseball pro athletes was established in Brown, where the non-

statutory labor exemption compels organized labor to rely on labor laws, not the antitrust laws in bargaining after expiration of a CBA and past impasse

ii. Only by an act of decertification of the union are workers able to utilize antitrustc. Expressly removed the exemption in the limited area of major league labor relations

2. Flood v. Kuhna. Player challenged pro baseball’s reserve system as violative of federal antitrust laws

i. Player had been traded without his consent, filed suit against commissioner b. Holding: Professional baseball is a business, and it is engaged in interstate commerce

i. Though recognizing baseball as a business, Court found that baseball’s exemption from federal antitrust, is entitled benefit of stare decisis

ii. Remedy for player’s cause of action is congressional, not judicial, but congress has not shown any intention for baseball’s reserve system to reach antitrust

iii. Congress expressly removed the exemption in baseball labor relations under the Curt Flood Act of 1998

3. Piazza v. MLB (1993)a. Investor unsuccessfully applied to MLB to buy a baseball team to relocate to Tampa, FL

i. When defamatory remarks were made about Piazza, deal was never approved, and he sued alleging constitutional and antitrust law violations

ii. MLB claimed it was exempt from antitrust liabilityb. Holding: Baseball is exempt from antitrust liability only in regard to the reserve system

i. Since the reserve system is not an issue in this case, MLB is not exempt from antitrust in this case

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ii. Baseball is considered a business under intestate commerce, but exemption created for its reserve system – until CFA of 1998

League Decision Marking Generally

1. Private Sports Leagues function as Private Associations a. Courts are reluctant to scrutinize actions of private associations, except where the leage

activities are deemed to lack fundamental fairness, or are considered arbitrary and capricious

b. Leagues must conduct the decision process according to the terms of the leagues’ governing documents

League Decision Making – Membership

1. League Approval Processes ensure that:a. Member club operations are adequately capitalized b. Pro forma budgets are reasonably projected c. New ownership and club are otherwise economically secured. Owners are of sound moral character and compatible w/ the league

2. Morsani v. MLBa. Morsani claimed that MLB tortuously interfered with advantageous baseball and

contractual relationships and had exceeded the scope of their approval rights in connection with Morsani’s attempt to acquire a MLB team in Tampa, FL

b. Holding: The privilege to interfere in a k because of a financial interest carries with it the obligation to employ means that are not improper

i. Privilege to interfere w/ a 3rd party’s conduct, however, does not include the purposeful causing of a breach of k – threats, intimidation, conspiratorial conduct

ii. MLB exceeded its legitimate scope3. NO Pelicans v. NAPBL

a. NO Baseball alleged that the NAPBL violated antitrust law when it improperly ignored its own rules in denying territorial rights

i. NO Baseball claimed it had been awarded territorial rights and that NPBL acted intentionally, arbitrarily, and capriciously when it violated its own rules and awarded rights to another team

b. Holding: Courts will not interfere with the internal judgments of a private association, except in cases where the action complained of was arbitrary, capricious, or unjustly discriminatory – genuine issue of material fact

4. Piazza v. MLB (2)a. Piazza alleged that MLB violated antitrust law by restraining competition in the baseball

team franchise market i. Piazza application to purchase the SF Giants was denied by MLB,

ii. Alleged that MLB interfered directly and substantially w/ competition in the team franchise market w/ intent to monopolize and restrain competition in that market

b. Holding: Where unique, particularized injury to an individual is identified in a complaint, the individual is entitled to seek damages to redress the injury received as a result of his alleged illegal exclusion from a market

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i. Piazza did not allege damages to the partnership entity, but sought to redress his own allegedly unlawful exclusion from competing ina relevant market

ii. Court must focus on the nexus between the antitrust violation and the plaintiff’s harm and on whether the harm was a type for which Congress provides a remedy

5. Levin v. NBAa. Levin claimed that the NBA violated antitrust when it rejected his application to buy the

Boston Celtics team b. Holding: Where the action attacked has neither an anti-competitive intent nor effect, that

conduct is not violative of antitrust laws i. Exclusion from membership did not have an anti-competitive effect nor an effect

on public interest

League Decision Making – Relocation

1. League approval processes are designed to assure that: a. Potential relocation sites posses adequate demographic for stability b. Does not exacerbate travel and scheduling demands c. Does not encroach upon existing territorial rights d. Does not undermine geographic diversity required for league wide marketing e. Contractual and moral duties to cities, including loyalty, is satisfied

2. LA Coliseum Commission v. NFL a. LA Coliseum Commission claimed that the NFL violated the antitrust laws when it

passed a rule requiring approval by the members of the League for a team to move into another team’s home territory

b. Holding: To w/stand antitrust, restrictions on team movement should be more closely tailored to serve the needs inherent in producing a product and in competing w/ others

i. Some sort of procedural mechanism is necessary to allow a team desiring a move to present its case, but the NFL made no showing that the transfer of the Raiders would have any harmful effect

ii. NFL is a single entity and the rule was an “unreasonable restraint on trade,” which is a unique question of fact.

3. NBA v. SDC Basketballa. NBA contended that ti could prevent the SDC from moving to LA under its franchise

movement rule b. Holding: The question of whether a sport league’s relocation rule unreasonably restrains

trade is a question of fact, not a question of lawi. Plaintiff attacking a relocation rule must show the rule is intended to harm or

unreasonably restrains competition ii. In order to support summary judgment for SDC, rule must either be void as a

matter of law, or have no genuine issues of fact to support the NBA4. St. Louis Convention Commission v. NFL

a. SLCC alleged that the NFL violated the Sherman Act and was guilty of tortious interference with contract bc its relocation rules created a one-buyer market

i. Alleged that the NFL relocation rules created an atmosphere where teams were unwilling to relocate and led to SLCC having to pay large relocation fees to gain approval of the move

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b. Holding: Jury may not rest its verdict on an expert’s conclusion w/o some underlying facts and reasons, or a logical inferential process to support the expert’s opinion

i. No evidence to support a finding that there were teams that were actually able and desiring to bid, but were prevented from doing it

ii. Without any evidence tending to show that an expert’s economic model actually applied to NFL and the SLCC efforts to obtain a team, testimony is not sufficient to create a jury question on issue of causation

League Decision Making – Merchandising/Broadcasting

1. NFL Properties v. Dallas Cowboysa. NFL Properties alleged that the Cowboys had impermissibly exploited NFL club marks,

by allegedly allowing sponsors to unlawfully use NFLP marks, which were exclusively licensed to NFLP

b. Holding: Where a party has made unilateral agreements w/ the direct competitor of lawful exclusive sponsors and licensees, it has made impossible for the licensor to honor its contractual obligations

i. Cowboys have tortiously and intentionally interfered w/ NFLP’s kii. Cowboys used the NFLP marks and its own marks in a manner which is likely to

confuse the public as to NFL’s sponsorship or approval of certain products, creating a cause of action under the Lanham Act

2. American Needle v. NFLa. NFL signed an exclusive apparel licensing deal with Reebok International. American

Needle, which had individual licensing deals with NFL teams, sued, arguing the NFL’s exclusive deal with Reebok violated antitrust rules.

i. NFL argued that it is a single entity with 32 teams that compete with each other in football but not in business, where the teams collectively compete with other sports and forms of entertainment

ii. American Needle countered by arguing that the league was actually a collection of 32 independent entities — i.e., all the teams.

b. Holding: Section 1 of the Sherman Antitrust Act applies to the NFL, and any unilateral decision made by the NFL that affect all the teams shall be viewed under the “Rule of Reason” for antitrust purposes

i. Under the “Rule of Reason,” a lower court has to examine all of the circumstances to determine if and to what degree the action is anticompetitive

3. Chicago Professional Sports LP v. NBAa. Chicago Bulls argued that the NBA’s licensing fees for TV broadcasting of games were

excessive and anticompetitive i. NBA rule limited telecasts to the team’s home markets

b. Holding: When acting in the broadcast market the NBA is closer to a single firm than to a group of independent firms

i. Chicago must establish that the NBA possessed power in a relevant market and that its exercise of that power has injured consumers

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League v. League – Monopoly

1. Relevant Questiona. Whether the dominant league has unfairly prevented competition to gain the market

position b. Attack from parties external to league operations usually focuses on Section 2 of the

Sherman Act, where must provei. Plaintiff must prove that the D possesses monopoly power and misused it

ii. Plaintiff must establish the relevant product market and geographic market to prove existence of monopoly power

iii. D actions are considered to qualify as misuse of monopoly power where the actions illegally exclude or prevent competition

2. AFL v. NFLa. AFL alleged that the NFL monopolized, attempted to monopolize, and conspired to

monopolize, major league professional football i. Alleged the NFL’s predominant intent in granting franchises to certain cities was

to destroy the AFLb. Holding: Where a party does not have the power to prevent or unreasonably restrict

competition, it is not liable for monopolizations i. NFL did not have the power to exclude the AFL from adequate TV outlets or to

prevent the AFL from signing an adequate number of qualified players ii. Predominant intent of NFL owners in granting certain franchises was to avoid

competition for business purposes 3. USFL v. NFL

a. The USFL claimed that the NFL had coerced TV networks not to contract with the USFL and had conspired to monopolize professional football

b. Holding: Mere solicitation of governmental action through legislative processes, even though the sole purpose is to restrain competition, is an activity which is fully protected by the First Amendment and is immune from Sherman Act liability

i. While disparagement complied with the power to exclude competition may violate the Sherman Act, dissemination of negative information regarding a competitor, unaccompanied by misstatements of fact, do not

ii. When the NFL presented its viewpoint to city bodies deciding whether or not to grant the USFL stadium access, it was immune from Sherman Act liability, as there were no specific allegations of falsity or misstatements of fact in USFL allegations of disparagement

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Authority of League Commissioners

1. Charles O. Finley, Inc. v. Kuhn a. After Finley, the owner of the Oakland A’s, sold the k rights to the services of 3 of his

players, Commissioner Kuhn disapproved the assignments of the k’s as inconsistent with the best interests of baseball

b. Holding: The commissioner has the authority to determine whether any act, transaction, or practice is not w/in the best interests of baseball, and upon such determination, to take whatever preventive or remedial action he deems appropriate, whether or not the act, transaction, or practice complies with ML rules or involves moral turpitude

i. As commissioner he was vested w/ the broad authority to be pro baseball’s umpire and governor, not the judiciary

ii. Commissioner acted in good faith in a manner that he determined to be within the best interests of baseball

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PART V: TORTS AND SPORTS

Liability of One Participant to Another

1. Borque v. Duplechina. B alleged that D violated the rules of softball when he negligently collided with B,

causing him serious injury b. Holding: Participant in a game or sport assumes all of the risks incidental to that

particular activity which are obvious and foreseeable i. Participant does not assume the risk of unexpected or unsportsmanlike conduct by

other players 2. Nabozny v. Barnhill

a. N claimed that B negligently kicked him during a soccer match b. Holding: Reckless disregard for the safetly of other players cannot be excused

i. Question for jury whether B’s behavior was deliberate, willful, or with a reckless disregard for the safety of another player

3. Hackbart v. Cincinnati Bengals a. H was injured during a football game against the Bengals when a Bengals player

purposely hit H on the back of the head with his forearm in the heat of the momenti. H sued the Bengals and the other player in tort, alleging reckless misconduct

b. Holding: The general rules of football prohibit intentional punching or striking others i. It is enough if the actor knows that there is a strong probability that harm will

occur, whether he intended injury to occur or not4. Gauvin v. Clark

a. G alleged that C was liable for injuries G received when playing on a college varsity hockey team

b. Holding: Personal injury cases arising out of an athletic event must be predicated on reckless disregard of safety

i. Participants in an athletic event owe a duty to one another to refrain from reckless misconduct and liability may result from such a breach

Spectator as a Plaintiff

1. Ticket-holding spectator a. Invitee to whom the highest duty of care is owed b. Spectators assume the commonly associated risks w/ observing the sport

2. Vicarious Liability a. Where spectator is injured by arguably tortious conduct of a participant b. ER is liable bc it is settled that a master is liable for willful and malicious acts of his

servant when done in the scope of employment c. Guided by foreseeable participant behavior

i. Throwing a ball into the stands or a duty to control crowds – foreseeable ii. Assaulting a criticizing spectator – not foreseeable

d. Traditionally, owner of a sports complex has only a limited duty protect the spectator from common hazards of the game

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i. Spectator assumes the inherent risks of attending a sporting event so long as the owner of the ballpark does not unduly enhance those risks

3. Spectator Denied Admissiona. Owners broad power to exclude any person for any reason is restricted, so that patrons

are not arbitrarily excluded 4. Medical Assistance to Spectators

a. Failure to provide adequate emergency medical assistance to an injured spectator provides a viable cause of action, at least to the extent it can be shown that the injuries were aggravated by lack of such care

Medical Malpractice in Athletics

1. Rosensweig v. State a. The estate of a boxer who died after a knockout in the ring alleged that the physician who

had examined him prior to the fight was negligent i. Physician certified the fighter was fit to enter the ring after being severly beaten in

the ring twice beforeb. Holding: Physician is not negligent if there is no official rule requiring a compulsory lay-

off of a fighter who has received a severe beating i. No evidence of prio brain injury when the standard exam was done

ii. Immediate proximate cause of the injury resulting in death was a severe blow to the head that could have caused death, irrespective of previous condition

2. Colombo v. Sweanhaka Central HS District a. Student challenged a physician’s recommendation that he be excluded from competing in

high school contact sports (due to a hearing disability)b. Holding: Determination of an administrative body, made on rational basis, should not be

set aside unless it was arbitrary or capricious i. Medical diagnosis of the examining physician was a valid exercise of judgment

ii. Not arbitrary/capricious bc there was serious risk of injury to him/others players

Intentional Interference w/ Contractual Relations

1. World Football League v. Dallas Cowboys a. Cowboys alleged that the WFL was raiding its players, inquiring as to whether they

would be interest in receiving offers at the expiration of their kb. Holding: The signing of contracts for future services would not in itself be tortious

interference with obligations under present contracts i. An injunction restraining the signing of such future k would be an unreasonable

restraint on the freedom of k of the players and their prospective ERs2. NE Patriots v. University of Colorado

a. When the head coach of NE breached his k bc he had agreed to go to UC to coach, NE obtained a preliminary injunction enjoining UC from employing him, and suspended him

i. UC appealed, claiming NE had unclean handsb. Holding: In order to be barred from relief under the “unclean hands” doctrine, “unclean

hands” must refer to the controversy in issue i. NE has right to relief bc unclean hands not specific to this transaction

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