LAW OF PRIVATE ASSICIATIONS/CONSTITUTIONAL INTRUSIONS Brentwood Academy v Tennessee Secondary School Athletic Assn ( TSSAA) Facts: Non profit

organization tried to regulate interscholastic sports among the public and private high schools in TN. Some schools in the association were private and some public. 84% public schools. Most officials were public officials that worked in schools. There is a lot of Entwinement present. - But Showing entwinement is NOT ENOUGH - Its just a start - Must be PERVASIVE entwinement Bottom pg 26 Issue: Is this association a state actor? What is the implication of them being a state action in this particular case? - 1st, 14th , 5th amendment would apply to them Holding: Yes, this association is a state actor. The associations regulatory activity may and should be treated as state action because of pervasive entwinement -public officials governing association -by their service, they qualify for retirement benefits Big Question- when can I get at these Private Associations? Dissent: Thomas says there is no symbiotic relationship. Symbiotic would mean state funds the association. But here any school can join -private or public, State did not create the association -Pervasive entwinement= means you cant tell one from the other. When its a Member suing Association there seems to be a less willingness to sue. - When it is athletes more inclination to sue Indiana High School Athletics Assn v. Avant 1995 Facts: Avant transfers from private school to public schools his last year of high school. His parents didnt change residences. He wanted to play sports like he did in his old school but could not because the IHSAA Athletic assn didnt let him play first 365 following transfer unless there was a change of residence. He later says its financial reasons but doesnt say it at first. And also court found no change in parents financial status capricious. Purpose of Rule: To eliminate school jumping and recruitment Standard to see if association is violating: if rule is arbitrary and capricious (unpredictable) His Argument: He argues that his technical violation is arbitrary and capricious since he was not recruited by the new high school and the basis for his decision to transfer was financial and personal hardship rather than athletic -In administrative law, government can do just about anything it wants as long as it explains itself. Is judicial review available here? Courts will not ordinarily interfere to control the administration of voluntary associations constitutions, by laws, or to enforce rights springing therefrom. -Haas Overruled the part saying that actions of private association are not judicially reviewable- under arbitrary and capricious standard. Holding: Court erred in not allowing IHSAA from rendering Avant ineligible to participate in sports. Court has jurisdiction to review the IHSAAs decision concerning Avants eligibility but IHSAA did NOT ACT arbitrarily or capriciously Did not constitute a violation of privileges or immunities under the Indiana Constitution Court said NCAA was not a state actor

1. It was a coalition between all of the states 2. No due process State actor: You are a child of the state and have to be held to certain standards In reference to sport leaguesJust because you dont like other choices, doesnt mean you HAVE NO OTHER CHOICE. Walsh v Louisiana School Athletic Assn 1980 Facts: Plaintiffs are students that attended Lutheran elementary schools and then enrolled at the nearest Lutheran High School but were found ineligible to play interscholastic sports during first year of high school due to the LHSAA transfer rule they were violating. Transfer Rule: upon completion of elementary or junior high school, a student is eligible to participate immediately in interscholastic athletic competition only at a high school within his home district ( geographical areas ). They are ineligible to participate for one year if he goes to a high school outside his home district after completing elementary or junior high school. Problem is that Lutheran high School is the only high school in New Orleans operated by Lutherans and all the Lutheran elementary or junior highs are outside the Lutheran High schools district. (Means that any student who wants to go to the Lutheran high school after Lutheran elementary or junior high, cant play sports for one year) This case is good for proposition that even if you find they are STATE ACTOR there are still hoops to jump through Still need general deference unless the actor agrees that they are violating.

Arguments: Plaintiffs allege= in their complaint that the existence and enforcement of the LHSAAs student transfer rule unduly burdened their first amendment right to the free exercise of religion and deprived them of their 14th amdt right to equal protection and due process Holding: RELIGION About freedom of religion, operation of the transfer rule did not violate first amendment. - Regulation is neutral on its face and motivated by legitimate secular concerns but does not burden the free exercise of religion - Enrolling in the school does place an indirect and incidental burden on the parents but not an Impermissible price to exact from the parents - Does not deny them from participating in Lutheran faith or from enrolling in Lutheran high school - Burden placed on exercise of religion is de minimis - Case by case basis doesnt work, clear rule better DUE PROCESS -14th amendment does not protect mere expectations or lesser interests and a students interest in participating in a single year of sports amounts to a mere expectation rather than a constitutionally protected claim of entitlement. EQUAL PROTECTION - Plaintiff says two groups of students were created and two groups of schools are not being treated equally. - Court says that In equal protection analysis, classification must be rationally related to a legitimate state interest o Purpose here is related to states valid and legitimate interest in deterring or eliminating the recruitment of promising young athletes by overzealous coaches, fans, faculty members - Low threshold in analyzing this

Holding: There is a Rational relationship to a legitimate state interest Students dont have property rights, just mere expectations Doesnt place undue burden on Religion

Letendre v. Missouri State High School Activities Assn 2002 Facts: Plaintiff, a 15 year old girl earning good grades wants to stop the MSHSAA from prohibiting students from competing on both a school and non school team in the same sport during the school teams season because she would like to continue swimming in the Private Parkway Swim Club where she had been swimming for years and would like also to join the school Swim team. -Court only has power to review voluntary associations quasi-judicial actions (judicial like actions such as granting waivers, etc) Rule: It is only upon the clearest showing that the rules have been violated by a decision of the associations tribunal that courts should intercede Claire argues: its against public policy because it is arbitrary, capricious and violated her Constitutional rights to equal protection and free association as guaranteed by the 14th amdt and 1st amendment Issue: Whether the challenged rule bears a rational relationship to a reasonable goal of the MSHSAA Holding: there are reasonable grounds for the rule by law 235 because a reasonable person could believe that a legitimate goal of the association is furthered by the rule. The by law is rationally related to MSHSAAs purpose of drafting rules that protect the welfare of the greatest number of high school athletes possible It does not impinge upon intimate human relationships nor core First Amendment freedoms. There is NO 1st amdt right for a high school student to associate simultaneously with both a school and a non school swim team -If state says that theres a legitimate government interest, Judiciary says its okay as long as they have one. -Almost any interest will do!! (c) Good Conduct Rules Brands v. Sheldon Community School 1987 Facts: Plaintiff is a high school wrestler who hoped to attend college on a wrestling scholarship but received a letter on Feb 4th from his school principal giving him a period of ineligibility when he could not wrestle due to an alleged breach of discipline involving 1. bullying behavior 2. an assault on a young girl 3. injuring the girl by doing an unjustified act and 4. participating in multiple acts of sexual intercourse. These dates happen to be the days of the sectional, district and state wrestling tournaments. Plaintiff attempted to get a reinstatement to be able to wrestle before the sectional tournament on feb 14th. - Plaintiff appealed to Superintendent who affirmed principals decision - Plaintiff went to a close hearing before the board and they too affirmed the principals decision - Then plaintiff filed complaint and motion before the court on Feb 13. He was allowed to compete on Feb 14 with a temporary restraining order Plaintiff argues: violation of equal protection, substantive due process, procedural due process, cruel and unusual punishment, right to counsel Temporary Restraining order:

1. threat of irreparable harm to the movant 2. the state of the balance between this harm and the injury that granting the injunction will inflict upon other parties 3. the probability that movant will succeed on the merits 4. public interest Court says only rights that could have been violated were: substantive or procedural due process rights PROCEDURAL DUE PROCESS - FIRST: Test- Plaintiff must first be deprived of liberty of property by defendant Rule: The existence of a protected liberty or property interest does not depend upon the seriousness of the loss that the plaintiff would suffer as a result of the governments action, but must look to the nature of the interest at stake and not the weight -RULE: There is no legitimate entitlement to participate in sports!! Even if there was a protected interest, Court is satisfied that the plaintiff received all process due to him (notified of charges, opportunity to explain, counsel, evidentiary hearing, called witnesses) Holding: Plaintiffs procedural due process rights were respected SUBSTANTIVE DUE PROCESS -FIRST: Test- Rights denied if Board decision was arbitrary or capricious Holding; Plaintiffs substantive due process were not violated In conclusion, court found that likelihood that plaintiff can prove that his constitutional rights were violated is not great enough to warrant a temporary restraining order or preliminary injunction -This case is here Introducing idea of Temporary Restraining Order (d) Age Rules Tiffany v. Arizona Interscholastic Assn 1986 Facts: Plaintiff was not eligible to participate in athletics his senior year due to the fact that he turned 19 a month before school would begin and the AIA had a rule that: If a student turns 19 before September 1 of the school year, he is not eligible to participate in interscholastic athletics. The bylaws said though that the executive board of the AIA had discretion to waive the rule if the circumstances where beyond control of the student and parent and enforcing the rule would be an undue hardship on student. Plaintiff went before the executive board of AIA and said how much he enjoyed playing sports, the discipline it provided etc but board denied the request. AIA has a policy of not making exceptions to 19 year old rule Constitutional Claims: Tiffanys interest in participating in high school sports, did not reach the level of property interest and does not invoke protection of due process clause Holding: AIA did not violate plaintiffs due process clause of 14th amdt when it refused to grant him a hardship waiver from its nineteen year old eligibility rule -But AIA acted unlawfully by failing to own bylaws in considering the request for waiver Failure to exercise discretion Board acted unreasonably, capriciously, and arbitrarily when it failed to exercise its discretion in considering tiffanys request for waiver (e) AGE REQUIREMENT DavenPort v Randolph County BD of Education

1984 Facts: 2 young plaintiffs brought suit because their football Coach barred them from playing football for a whole season due to their refusal to abide by the grooming policy by refusing to shave. Argument: Clean shaven policy is unconstitutional because its arbitrary and capricious Rule: grooming regulations are a reasonable means of furthering the school boards undeniable interest in teaching hygiene, instilling discipline, asserting authority and compelling uniformity Holding: Denial of relief is affirmed CHAPTER 3- Regulating intercollegiate Athletes pg 103 Courts have a trend of being unwilling to accept parole evidence to incorporate these types of promises into the contract, however, what youre trying to get passed here is summary judgment Trying to establish that there is enough to get passed that and that this is an issue for the jury

Taylor v. West Forest University 1972 Facts: Plaintiff was earning bad grades in college and wanted to do more studying than playing in the football team. He had a contract with the school saying that he would have to play in order to keep his scholarship. Holding: Court refused to look at anything but contract. NO issue to material fact. Got summary judgment. Ross v. Creighton University 1992 Facts: Plaintiff accepts scholarship to Creighton but is academically disadvantaged from everyone else. He goes a little nuts. He sues the school saying they should have never admitted him in the first place and if admitted should have taken special care to educate him. -Educational malpractice -Negligent admission Holding: Courts do not want to step into governmental administrators shoes. They do not want to open these doors. - Did make it pass pleading on Breach of Contract issue ( did not have evidence) - Once discovery starts, it will be hard to get passed summary judgment because all they will have is testimony Jackson v. Drake University 1991 Facts: University forced plaintiff to take easy classes in order for him to continue playing basketball for the University. Counts-Breach of contract, negligence, negligent misrepresentation, fraud, Post contract conduct on the part of Abatemarco Holding: Negligent misrepresentation and fraud charges Denied Motion for summary judgment granted for -Breach of Contract -Negligence - Post contract discrimination CHAPTER 6 Regulating Professional Athletics Charles v. O Finley & Co. v. Kuhn 1978 Facts: Owner of baseball team wants to sell off baseball players and the association tells him that he cannot do this. -This is a private owner not being able to sell his own thing because he joined this association. Issue: Is the Commissioner of baseball vested by contract with the authority to disapprove player assignments which he finds to be not in the best interests of baseball

Holding: Not against the best interest of the game to do this Atlanta Braves v. Kuhn 1977 Facts: Ted Turner, CEO of Braves, a major league baseball club and its owner, filed an action against defendant, the Commissioner of Baseball, seeking to enjoin the commissioner from imposing certain sanctions against the club and the owner. He was protected by then there was a penalty not listed in bylaws. Holding: The court concluded that the commissioner's decision to deprive the club of its first round draft choice was void. With respect to the balance of plaintiffs' claims, however, the court concluded that the commissioner acted within the scope of his authority. Chapter 2. CONSTITUTIONAL INTRUSTIONS Pg 74 Veronia School District v. Acton 1995 Facts: Drugs policy adopted in OR which authorized random urinalysis drug testing of students who participated in sports -all students in interscholastic sports -sign form consenting to it - independent laboratory checks - first offense : 6 week program or suspension from sports current and next -Second offense: suspension current and next two - Acton, 7th grader signed up for football but denied because parents didnt want to sign. District Court denied the claims but appeals reversed. Now in Supreme Court. Charge: Violates 4th and 14th amendments -Reason to expect intrusion because voluntarily entering a highly regulated association -Tests look only for drugs (not pregnancy, epilepsy, diabetes, etc.) -Relatively high degree of government concern is necessary in this case (nature of the concern is compelling) Holding: Search is reasonable. Because of the decreased expectation of privacy, relative unobtrusiveness of the search and the severity of the need met by the search

Freedom of Speech and Association Wildman v. Marshalltown School District 2001 Facts: Plaintiff is a high school student who played on the JV basketball and who was hoping to play on the varsity team after coach promised she would. She wrote a letter and distributed it to her teammates in the schools locker room. The letter mentioned things such as how team needed to stick together and that she wanted to talk to coach about who should be on the Vteam. Letter reached coach and school principal told plaintiff if she didnt apologize, she wouldnt be allowed to return to team. Charges: plaintiff alleged violation of her 1st amendment rights. Holding: Affirm, Summary judgment.

Rule: Right to express opinions on school premises is not absolute. It it well within the parameters of school officials authority to prohibit the public expression of vulgar and offensive comments and to teach civility and sensitivity in the expression of opinions - agreed that the letter did suggest that the team unite in defiance of the coach Free Exercise Issues Menora v. Illinois High School Assn. 1982 Facts: Plaintiffs are 2 orthodox Jewish boys bringing suit against the only private Illinois interscholastic sport association because of its rule forbidding basketball players to wear hats or other headwear. Purpose was to prevent it from falling during game and a player tripping and falling since Jewish males are required by religion to cover their head at all times unless they are unconscious, in water, or in imminent loss of death and this rule doesnt allow them to wear anything even yarmulkes . Charge:: violates free exercise of 1st amdt, alternatively 14th equal protection Rule: Comparison of two burdens is required: burden on the person who is seeking a government benefit of being denied the benefit as the price of observing his religion, and the burden on the govt of extending the benefit to someone who fails to meet the usual requirement for eligibility. Free exercise of religion does not mean costless exercise of religion, but the state must not make the exercise of religion unreasonable costly -Association didnt provide an authenticated instance of a fall caused by a yarmulke but the state need not await disaster to avoid safety. -Still dont think safety concern is great enough to justify states placing a heavy burden on religious observance. Holding: Doesnt violate free exercise. No violation of 14th amdt. All plaintiffs have to do to obviate the states concern with safety is to devise a method of affixing a head covering which will prevent it from falling off during basketball play. -if even after this, assn refuses to accommodate the religious beliefs, then it will be on constitutional quicksand District court ruling for plaintiffs vacated and remanded. Establishment Cases Sante Fe Independent School Dist v. Doe 2000, Supreme Court Facts: District had adopted a series of policies over several months dealing with prayer at school functions. Students chose to allow a student to say a prayer at varsity football games and selected a student. Issue: Whether petitioners policy permitting student led, student initiated prayer at football games violates the Establishment Clause? Holding: Yes, it does. Policy is invalid on its face bc it establishes an Improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a school events Reasoning: Difference between government speech endorsing religion and private speech. Pre game invocations should not be regarded as private speech because it is speech over the schools public address system, by a speaker representing the student body, under the supervision of school faculty and pursuant to a school policy that explicitly and Implicitly encourages public prayer. Nothing in Constitution prohibits any public school student form voluntarily praying at any time before, during, or after school day but the religious liberty by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer CHAPTER 3. REGULATING INTERCOLLEGIATE ATHLETICS

Do Student athletes Possess Property or Liberty Interests? If person is deprived of life, liberty, or property by state or federal action, some process- adequate notice and a fair hearing- must be given. (procedural due processs) This process also provides a party with a means of determining whether a constitutionally protected substantive right has in fact been infringed. Must establish: 1. state or federal action was involved 2. the party must be a person 3. an interest in life, liberty, or property must be threatened or infringed. Question is whether a property or liberty interest has been implicated. Hysaw v. Washburn University of Topeka 1987 Facts: Plaintiffs are black football players who had scholarships to attend defendant University and recruited to play there. They felt white players were being favored and awarded better scholarships and expressed this to coach. After missing one practice in protest of the treatment, def. told plaintiffs that they could keep scholarships and play if they followed some requirements which they did not and werent allowed to return to team. Players still received scholarship funds. Charge: Deprived of Civil Rights (Property, liberty, and free speech) and Breach of Scholarship K. PROPERTY RIGHTS -Rule: to have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than unilateral expectation of it. Must have a legitimate claim of entitlement to it. Holding: Only interest created by their agreement are interests in receiving scholarship funds and they did. Summary judgment granted. NO property right, only expectation. LIBERTY INTERESTS -Rule: Due process claim made out only if the liberty interest allegedly violated is protectable under the Constitution. Need a protectable liberty right. -damage to Reputation by state official is not enough; need tangible interest. Holding: No tangible interest Government employee defamation doesnt equal football scholarship defamation. Summary judge. Granted. FREE SPEECH INTERESTS Violated free speech by removing them from the team after they protested racial mistreatment Holding: Summary judge denied. Reasoning: Facts need to be cleared if facts were to establish that Plaintiff were disciplined for protesting racial mistreatment, def may have infringed plaintiffs first amdt rights not justified as a reasonable time, place, and manner restriction because disruption did not infringe on the rights of other players. BREACH OF K Reule: when a written K exists and its language is clear and unambiguous, the language controls Nothing in K about pl. being allowed to play football-Only money- No other evidence other than understandings and expectations. Holding: Def met all obligations under K, Summary judge granted. Conrad v. U of Washington 1992 State Constitution can give more right than Federal Constitution Facts: Pls are football players recruited to play football for UW for 3 consecutive quarters. In order not to renew students athletic financial aid, needed to be a finding of serious misconduct but serious misconduct isnt defined by any UW, NCAA, Pac-10 rule. Up to discretion of coach and fin aid. Pls were involved in a series of arrests, incidents,

and unruly behavior between 1983 and 1985 and were given warnings by their coach each time that if they cont. the behavior he would not recommend scholarship renewal. After last incident, coach did not recommend. Fin. Aid decided not to renew. One pl. Fudzie appealed and decision was affirmed. Issue: Whether the Univ.s termination of petitioners athletic scholarship violated their due process rights and if yes, what remedy? A claim of entitlement to the renewal of plaintiffs scholarships must have been created by the terms of the K to have due process protections. Holding: Duration of financial aid award precludes creation of a protected property interest and contract terms dont create legitimate claim of entitlement to renewal of scholarship. - NO property interest - Cant create a protected property interest without some substantive standard and explicitly mandatory language - Since no protected interest, dont need to address constitutionality of hearing. Defamation - For public figures requires actual malice (knowing falsity or reckless disregard for the truth - Difficult to prevail - Must prove reckless disregard with full knowledge of the harm that is likely to result from the publication Bilney v. The Evening Star Newspaper Co. 1979 Counts; Invasion of privacy and Intentional Infliction of mental distress Facts: Plaintiffs are basketball players at U of M against publishers of a few newspapers bc they published information about their GPAs and poor academic standings. They say this was a purely private matter, but concede it was true. Rule: One who gives publicity to a matter concerning the private life of another is subj to liability, if matter 1. would be highly offensive to reasonable person 2. no legitimate concern of public -Reasonableness under the facts presented is the determining factor Reasoning: Pl. were public figures thru their membership in the Univ basketball team. When their academic standing, which if continued would have likely caused their exclusion, reached the point of affecting their eligibility- the privacy status became more attenuated Holding: publications did not constitute a tortuous invasion of privacy Constitutional and Statutory Matters - Cases where courts were reluctant to impose public law limits on Intercollegiate athletics NCAA v. Tarkanian 1988 Sup Ct. Facts: Tarkanian was the basketball coach at U of Nevada. During a great season, U told him they were going to suspend him bc of a report from NCAA detailing 10 NCAA rule violations by him. NCAA placed UNLV on probation for 2 yrs until UNLV severed all ties b/c schools athletic program and Tarkanian. He brought suit alleging 14th amdt due process violations. District Ct. said NCAAs conduct was state action and that is decision was arbitrary and capricious. Sup Ct. looks into whether UNLVs actions are in compliance w the NCAA rules and recommendations turned the NCAAs conduct into state action. Holding: Not state action. Just b/c it has a lot of power does not mean NCAA is acting under color of state law. NCAA enjoyed no govt powers to help with investigation ( to subpoena witnesses, contempt sanctions) -NCAA gave options besides supervision and UNLV could have withdrawn from assn. NCAA v. Smith 1999, Sup Ct

Facts: Smith wanted to play intercollegiate volleyball during a post graduate program at Hofstra U and later at Univ of Pittsburgh. However, NCAA has a by law only allowing intercollegiate sports during undergraduate degree and NCAA refused to grant waiver and Smith sued alleging NCAA discriminates on the basis of sex by granting more waivers from restrictions to males postgrad student athletes. She claims they are state actor bc they receive federal financial assist thru dues. Rule: Entities that receive fed. Assistance whether directly or through an intermediary are recipients within Title IVetntities that only benefit economically from fed asst are not Holding: Dues not enough to make NCAA state actor. Reasoning: No allegations that NCAA members paid their dues with federal funds earmarked for that purpose. Bloom v. NCAA Facts: PL was recruited to play football at CU and requested waivers from CU to allow him to do student athletes endorsement and media activities since he had offers for it due to his Olympic and World Cup participation Holding: No abuse of trial cts discretion in failing to fault the NCAA for refusing to waive its rules. Not arbitrary in its application of endorsement bc players wearing equipment doesnt benefit any ONE student athlete. This was different from unpaid or single acting appearances. -Bloom was not treated unfairly -No preliminary injunction bc no success on the merits satisfied. Brennan v. BD of Trustees for U of Louisiana Systems 1997 Facts: Alleged violation of Right to privacy and deprived pl of liberty and property interest without due process. Plaintiff student brought an action against defendant university, which sought to stop the university board from enforcing an order suspending the student from participating in intercollegiate athletic competition for one year due to positive drug tests results which he claimed were false positives. The 19th District Court in and for the Parish of East Baton Rouge (Louisiana) granted the preliminary injunction. The university board brought an appeal. Holding: Drug tests were not flawed No privacy, liberty or property interest in participating in intercollegiate athletics Miramax v. MPAA 1990 Facts: Respondent industry rating board gave petitioner film company's film an "X" rating based on two sexually explicit scenes. Petitioner declined to delete or edit the objectionable scenes, and the rating was upheld by respondent's appeal board. Petitioner filed suit seeking a court-imposed modification of the rating from "X" to "R." The court denied petitioner relief and dismissed the petition. While the court found fault with respondent's rating standard, based upon the average American parent (AAP), without any professional input about the impact upon children, the court found that petitioner failed to allege any bad faith in respondent's action. Petitioner also failed to show that respondent acted arbitrarily, capriciously, or without rational basis in applying its AAP standard, as petitioner acknowledged that its film was not suitable for those under the age of 18. Petitioner also failed to present evidence of clear and intentional discrimination. The court indicated that petitioner may have filed suit merely to draw attention to its film. Holding: The petition was dismissed and the relief sought was denied because petitioner film company failed to show that respondent industry rating board acted in bad faith, arbitrarily, capriciously, or without rational basis, or discriminated against it by giving petitioner's film an "X" rating. Maljack Productions v. MPAA 1995 Facts: The movie producer asserted in his complaint that the trade association discriminated against it, a non-member of the association, when it assigned an "X" rating for violence to the movie producer's film, while more violent films

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produced by companies belonging to the trade association were given "R" ratings. Because the trade association would not change the "X" rating, the movie producer released the film as unrated, which negatively affected the film's success. The district court dismissed the movie producer's complaint and denied leave to amend. The court reversed because it held that the complaint adequately alleged the sort of discrimination that could breach the implied covenant of good faith and fair dealing in the contract between the parties to rate the film. The court found that the complaint contained an assertion of discrimination in the rating because of the movie producer's non-member status, and alleged that the trade association routinely assigned "R" ratings to the films of association members that were more violent than the movie producer's film. Even in the absence of data to support the claim, the assertions were sufficient to survive a motion to dismiss. Holding: The court reversed the district court's order dismissing the original complaint and remanded the case for further proceedings. Gelbman v Valleycrest 2001 FactS: The contestant signed a release and official game rules prior to appearing on a game show. He was eliminated after he incorrectly answered a question. He claimed the question was ambiguous, but the producers declined to change their decision. He subsequently sued the producers and the network. The court found that the contestant sufficiently pleaded the traditional elements of a contract. However, he failed to specify what terms of the contract were breached. Both the release and the rules contained clauses reserving final judgment to the producers and the network. There was no reasonable argument that the contract was oppressive, unconscionable, or contrary to public policy. The contestant made no showing that the disagreement constituted extreme or outrageous conduct. No duty was owed to the contestant; the contract specifically prohibited tort actions. Holding: The motion to dismiss was granted. Winston v. NBC Facts: Pursuant to respondent network's rules, a game show contestant may make only three lifetime appearances on game shows. Thus, it refused to pay money won on a game show to appellant contestant, claiming that appellant misrepresented his eligibility. Appellant filed an action against respondents, network and production company, and then challenged the lower court's order granting summary judgment to respondents. The court affirmed the judgment. Appellant forfeited any right to winnings on the game show because of fraudulent misrepresentations made regarding his eligibility. The court also held that there were no triable issues of fact based on estoppel or waiver. The court found that appellant knew about his third prior show, failed to disclose that fact to respondents, and denied it when confronted. Finally, the court held that a document appellant signed was an agreement that if he failed to disclose a material fact, he would then forfeit any prizes he won on the show, and the forfeiture provision in the subject contract was not a contract of adhesion and not unconscionable. Holding: The court affirmed the lower court's judgment that granted summary judgment to respondents, network and production company, in plaintiff contestant's action to collect winnings on a game show. The court found that plaintiff had violated a rule that prohibited more than three appearances on a game show, and then tried to conceal that fact. SEG inc v. Stillman Facts: Involves a claim filed by the producer of the reality program Survivor for breach of contract against a former Survivor contestant, Stacey E. Stillman, based on her alleged violation of a confidentiality agreement. The defendant Stacey Stillman has appealed from the trial court's refusal to grant her motion to strike in its entirety. After being sued by the plaintiff SEG, Inc. for breach of contract, breach of the implied covenant of good faith and fair dealing and defamation, she moved to strike the complaint . The trial court granted the motion as to the first two counts, but denied it as to SEG's cause of action for defamation. Stillman has appealed from that denial and SEG has cross-appealed from the trial court's grant of the motion as to its contract and bad faith claims.

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Our review of the record in this matter persuades us that the trial court's ruling was correct in all respects. For the reasons discussed below, it is clear that no evidence was presented by SEG demonstrating that Stillman had breached any express provision or implied covenant of her contract with SEG; but SEG did demonstrate a prima facie case that Stillman's public statements and conduct constituted an actionable defamation of SEG. Holding: affirm the trial court's order. Lawson v. US - McArthur Era case - Looking for Communist activities - Throes of idealogical war Facts: two writers of Motion pictures taken to House of Rep committee meeting. Asked if they were communists and they refused to answer Not a right to speak case. They dont say Communism is a crime but that is a legitimate or grave legislative purpose. They can go far without saying its a crime. FREE SPEECH IS NOT ABSOLUTE. Borger by Borger v. biscillia 1995 Facts: Students want to show Schindlers list in school but it is Rater R and not allowed. Students do not lose their First Amendment rights when they walk through the schoolhouse door. - School officials have abundant discretion to construct curriculum, and they only violate the First Amendment when they limit access to materials for the purpose of restricting access to the political ideas or social perspectives discussed in them, when that action is motivated simply by the officials disapproval of the ideas involved. RULE: Thus, the court must consider whether or not the defendants' decision bore a reasonable relationship to a legitimate pedagogical concern Reasoning: It is true that a private organization's rating system cannot be used to determine whether a movie receives constitutional protection. For instance, a city cannot rely on the rating system to determine which movies are obscene speech and thereby less protected. However, that does not mean that the School Board cannot choose to use the ratings system as a filter of films. As noted above, the Supreme Court has said that schools and classrooms are nonpublic forums, outside the general marketplace of expression, and school boards have more discretion to censor within that environment than do bodies governing the public sphere. The grounds for school board curriculum decisions need only bear a reasonable relationship to their legitimate purpose. Holding: School board decision stands. Borgers summary judgment denied School can rely on R rating but govt cannot rely on MPAA for obscenity - All R movies are content neutral Miller v. national Broadcast Co ( NBC) Facts: A television camera crew had entered a home, without the consent of the residents, accompanying paramedics called to administer life-saving techniques to a man who had suffered a heart seizure and who later died, in order to film the work of the paramedics. The station later used the film on its nightly news without obtaining anyone's consent. After the station had received complaints from plaintiffs, the man's wife and their daughter, the station later used portions of the film in a commercial advertising a mini-documentary about the paramedics' work.

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Brought action for damages, alleging trespass, invasion of privacy, and infliction of emotional distress against all defendants. After considerable discovery and amendment of pleadings, the trial court granted defendants' motion for summary judgment. Plaintiffs appeal. We affirm in part and reverse in part. Holding: Must get consent especially when it is in the home. First amendment does not cover them. (applies to paparazzi) US v. Playboy Group Facts: Two sections. One said that any sexually oriented programming must be scrambled blocked or limited to late night. If you cant totally do that then you can only show it from 10pm to 6am. They knew that they couldnt do that. Holding: Because the Government failed to prove 505 is the least restrictive means for addressing a real problem, the District Court did not err in holding the statute violative of the First Amendment.

Capital Cities v. Crisp Facts: Oklahoma says that there will be no broadcoast of alcoholic beverages in their state. Specifically with cable operators because They know they cant regulate the national industries or stations that carry NBC, so go after cable operators because they are a local business that received signal from national providers. Holding: Supreme court says no, they cant do this. Westmoreland v. CBS Facts: Appellees were involved in a court case that involved information and coverage of a war. CBS filed a petition seeking permission to televise the trial. The lower court denied CBSs petition. The lower court also denied CBSs motion for reconsideration. On further appeal, the court affirmed the judgment of the lower court because the broadcaster's status as a member of the press did not entitle him to televise the trial. Holding: There is no right to broadcast from courtroom in civil cases. You can attend and then write about it, but thats it. Right to attend, not to televise People have a right to go to the trial, but court cant hold everyone so it should be able to be broadcasted. Zamora v. CBS Facts: Involves a Claim of Negligence saying my child watched too much tv then went out and murdered - Parents alleged that networks breached their duty by failing to use ordinary care to prevent their child, who had shot and killed his neighbor, from being impermissibly stimulated and incited to duplicate the atrocities that he viewed on television. -The networks moved to dismiss the complaint and contended that to permit the claims as stated would abridge their First Amendment rights. The networks also claimed that no duty of the type alleged existed by statute or otherwise and that the complaint failed to set forth a legal or factual basis to support proximate cause. Holding: Dismissed. The court stated that (1) the standard demanded in the complaint was devoid of guidance and lacked legal cause; (2) the imposition of the duty claimed would discriminate among television productions on the basis of content and not on the basis of any of the applicable 1st amdt limitations; and (3) the imposition of such a generally undefined duty would be an unconstitutional exercise by the court. Tv has no duty to you or your children Turner v. FCC Facts: Cable television system operators and programmers brought actions against FCC, challenging constitutionality of must-carry provisions of Cable Television Consumer Protection and Competition Act that required carriage of local broadcast television stations on cable television systems. The must-carry provisions were content-neutral restrictions on speech, subject to intermediate 1st amdt scrutiny. Holding: Granted summary judgment for FCC

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The Court concluded that the must-carry provisions were consistent with 1st amdt because they furthered important governmental interest and did not burden substantially more speech than necessary to further those interests. The Court concluded that Congress drew reasonable inferences from the substantial evidence before it to conclude that in absence of the must-carry rules, significant numbers of broadcast stations would be refused carriage. The judgments about how competing economic interests were to be reconciled in the field of television were for Congress to make. must carry provisions cable must carry local channels Luke Records v. Navarro Facts: record company sought reversal of the district court's declaratory judgment that a musical recording was obscene under Fla. Stat and the US Constitution, contending that the district court misapplied the test for determining obscenity. This case is apparently the first time that a court of appeals has been asked to apply the Miller test to a musical composition, which contains both instrumental music and lyrics. Although we tend to agree with appellants' contention that because music possesses inherent artistic value, no work of music alone may be declared obscene, that issue is not presented in this case. The Sheriff's contention that the work is not protected by the First Amendment is based on the lyrics, not the music. The Sheriff's brief denies any intention to put rap music to the test, but states it is abundantly obvious that it is only the lyrical content which makes As Nasty As They Wanna Be obscene. Assuming that music is not simply a sham attempt to protect obscene material, the Miller test should be applied to the lyrics and the music of As Nasty As They Wanna Be as a whole. Rule: The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. This test is conjunctive. A work cannot be held obscene unless each element of the test has been evaluated independently and all three have been met. Holding: declaratory judgment that appellant record company's musical recording was obscene was reversed because the district judge misapplied the test for determining obscenity and the record was insufficient to determine whether the work lacked serious artistic, scientific, literary or political value. Battle of the Experts- and the one with more experts won Marilyn Manson Facts: The parties here dispute whether the plaintiffs have a right, through the Constitution or through contract, to perform their previously scheduled June 15, 1997 OzzFest 97 concert event at Giants Stadium. The Giants Stadium performance of OzzFest 97 would include a performance by the rock band Marilyn Manson. - This one is a closer call Holding: State loses again but they are a little closer - Its not the CONTENT, its the violence - That seems content neutral like it would work, but the only regulation they relied on was shows offensive to public morals. Regulations only referred to morals and not violence. - That regulation itself is content based

SPORTS GENDER DISCRIMINATION - GENERAL OUTLINE 1) Title IX (34 CFR 106.41) a general statutory prohibition of sex-based exclusion from participation, denial of benefits, or discrimination under educational programs. a) The test for compliance is a comparison of the availability, quality and kinds of benefits, opportunities and treatment afforded members of both sexes. i) The compared program components must be equivalent or equal in effect and identical benefits, opportunities or treatment is not required, provided the overall effect of any differences is negligible.

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b) Unequal allocation of resources and its three prong test A school is in compliance with the law if any of the following is met. i) The intercollegiate levels of participation opportunities for male and female students are substantially proportionate to their enrollments. ii) The institution must show a continuing practice of program expansion that is responsive to the developing interest and abilities of the underrepresented sex. iii) The institution must demonstrate the interests and abilities of members of the underrepresented sex have been fully and effectively accommodated by the present program. c) Cohen v. Brown University the third prong demands full and effective accommodation of the underrepresented sex. i) The institution must ensure participatory opportunities to the extent there is sufficient interest and ability among members of the excluded sex to sustain a viable team. ii) The fact that the overrepresented gender is less than fully accommodated will not excuse a shortfall in the provision of opportunities for the girls. iii) The third benchmarks purpose determine if a student has been excluded from participation in or denied the benefits of an athletic program based on sex. (1) It requires an assessment of whether there is unmet need in the underrepresented gender that rises to a level sufficient to warrant a new team or the upgrading of an existing team. d) Cohen v. Brown Title IX is an anti-discrimination statute and permits affirmative action and an inference that a significant gender-based statistical disparity may indicate the existence of discrimination. i) Race and gender conscious remedies are both appropriate and constitutionally permissible under a federal anti-discrimination regime. ii) Title IX operates to ensure that the gender-segregated allocation of athletics opportunities does not disadvantage either gender. iii) Prong three requires evidence of interest in athletics and permits the use of statistical evidence in assessing the level of interest in sports. (1) Institutions determine interest and abilities by nondiscriminatory methods of their choosing provided (a) The process take into account the nationally increasing levels of womens interests and abilities (b) The methods are responsive to the expressed interests of students capable of intercollegiate competition (girls). (i) Club and intramural sports, sports at feeder schools, community and regional sports programs, and phys ed classes. iv) A gender-conscious remedial scheme is constitutionally permissible if it directly protects the interests of the disproportionately burdened gender. (1) Prong three is implicated where a gender based disparity with respect to athletic opportunities has been shown to exist. v) An academic institution may operate separate teams for members of each sex where selection of such teams is based upon competitive skill or the activity is a contact sport. (1) The regulation is not meant to promote athletics on college campuses and a school is not required to sponsor an athletic program of any size. (2) To fully accommodate the interests and abilities of the underrepresented sex is an extraordinarily high requirement. (3) The mere fact that there are some female students interested in a sport does not ipso facto require the school to provide a varsity team. vi) Unmet interest of the underrepresented sex must be completely accommodated before any of the interest of the overrepresented gender can be accommodated. (1) The test requires proportionate participation opportunities for both sexes (prong 1) unless one sex is simply not interested in participating (prong 3) e) Neal v. Cal State Schools should take into account the nationally increasing levels of womens interests and abilities and avoid disadvantaging members of an underrepresented sex. i) Its central aspect is to encourage women to participate in sports.

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Title IX envisions continuing progress toward the goal of equal opportunity for all athletes and recognizes that, where society has conditioned women to expect less than their fair share of the athletic opportunities womens interest in participating in sports will not rise to a par with men overnight.

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SPORTS GENDER DISCRIMINATION - CHAPTER 10 OUTLINE A. Intro Most claims and materials focus on Title IX of the Educational Amendments of 1972, 20 USC 1681, and the Equal Protection clause of the 14th amendment. Some consider Title IX to be like an affirmative action statute. In the racial aspect, this discrimination would not be allowed because court applies Strict Scrutiny test to racial discrimination but with gender, a lower standard is applied and so it is ok to distinguish on gender grounds. B. History There has always been gender inequity throughout history. In the 1960s the first intercollegiate womens basketball tournament was played in Pennsylvania and the Commission on Intercollegiate Athletics for Women (CIAW) was established. CIAWs purpose was to increase participation by women in competitive sports. 1971, Association for Intercollegiate Athletics for Women (AIAW) was formed, replacing CIAW. In 1980, the National Collegiate Athletic Association (NCAA) began offering national championships for women in all three of their divisions. AIAW sued NCAA for anti-trust violation but lost and AIAW was disbanded. In 1972, Title IX was implemented which required the promulgation of regulations to achieve gender equity in educational opportunities. In 1978, the Department of Health, Education, and Welfare (HEW) issued a set of proposed policy interpretations regarding application of Title IX to athletics. In 1980, HEW organized the DOEs Office of Civil Rights (OCR) which was charged with responsibility for enforcing Title IX. Opponents said that implementing Title IX was too expensive and a waste of funds . Grove City College v. Bell (1984) Title IX only applies to programs that benefit directly from federal funds. Title IX was not applicable to athletics as long as the school did not use the federal money to directly fund athletics. Civil Rights Restoration Act of 1987 then basically overruled the Grove City decision and made all departments and programs of education institutions that receive federal funds be bound by Title IX. Franklin v. Gwinnett County Public Schools (1992) prevailing plaintiffs can recover monetary damages and attorneys fees for intentional violations of Title IX. In 1994, Congress passed Equity in Athletics Disclosure Act (EADA), 20 USC 1092, which required federal funded institutions to disclose information regarding its athletics program. In 1996, OCR issued Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test. All aspects of Title IX are fully applicable to all levels of both interscholastic and intercollegiate sports. C. Gender-Based Exclusion from a Particular Sport

Force v. Pierce City R-VI School District (1983) A girl wishing to try out for a junior high football team challenged that the school's all-male try-out policy. Since all males of any ability, size, or strength could try out, the Supreme Court rejected the school's argument that safety was a legitimate reason for an exclusion to try out, as a tryout did not ensure a place on the team, simply the opportunity to make the attempt to qualify. When a corresponding girls' team is not available, and safety is not a legitimate concern, Title IX and the Equal Protection Clause require a school to provide equal treatment. It is clear that MSHSAAs actions amount to state actions within the meaning of the Fourteenth Amendment. Consequently, the rules and regulations of the MSHSAA were held to be subject to the requirements of the Equal Protection clause. Williams v. School District of Bethlehem, PA (1993) Plaintiffs brought suit challenging the exclusion of their son from the girls field hockey team. The court determined that athletic opportunities had not been previously limited for boys, so there is no violation. Moreover, allowing boys to try-out and participate on girls teams would serve to displace girls from those teams, thereby decreasing realistic athletic opportunities for girls. The court noted that although Title IX and the regulation apply equally to boys as well as girls, it would require blinders to ignore the motivation for promulgation of the regulation on athletics was the historic emphasis on boys athletic programs to the exclusion of girls athletic programs in high schools as well as colleges. This case then bars a boy from trying out for a girls' field hockey team unless there is a history of discrimination against male athletes.

Notes: -Courts differ on whether or not Title IX precludes a constitutional claim.

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-Title IXs regulations do not require that members of the opposite sex be permitted to try out for unisex contact sports. -Both the Equal Protection Clause and Title IXs regulations permit separate but equal athletic teams in the same sport for both sexes. However, the standard should be one of comparability, not absolute equality. -State constitutional law may provide a basis for remedying gender inequities in interscholastic or intercollegiate athletics.

Mercer v. Duke University (1999) Woman wanted to join football team as a walk on, and they allowed her to attend try outs and practice with the team, but then eventually excluded her from the team. A university may choose not to permit a member of the opposite sex to try out for a contact sport team. Yet, "once an institution has allowed a member of one sex to try out for a team operated . . . for the other sex in a contact sport," the institution is subject to the general antidiscrimination regulations imposed by Title IX. Therefore, the Fourth Circuit reversed the trial court decision and remanded the case to the trial court for further proceedings.

Notes: -Fourth Circuit held in Mercer that punitive damages are unavailable in private actions brought to enforce Title IX, but awarded attorneys fees. -Private actors such as Duke are not state actors subject to federal constitutional rights claims, although state gender discrimination laws may apply to their conduct. D. Equal Athletic Participation Opportunities, Benefits, and Treatment 1. Equal Athletic Participation Opportunities Compliance with Title IX's requirement of equivalent athletic participation opportunities for women requires that a school satisfy any one of the three alternatives presented by the three-prong test: (1) substantial proportionality; or (2) history and continuing practice of program expansion; or (3) full and effective accommodation of the athletic interests and abilities of the school's female enrollment (must have a history and continuing practice of adding sports for the underrepresented gender).

Cohen v. Brown University (1997) Brown had announced plans to eliminate two men's sports- water polo and golf- and two women's sports- gymnastics and volleyball- in order to reduce costs. Because women's sports had only recently been added in numbers comparable to men's, female athletes felt that cutting equally from men's and women's teams was unfair. A group of female gymnasts and volleyball players, led by plaintiff Amy Cohen, sued the school claiming that it had violated Title IX by cutting support for women's teams. In March 1995, the U.S. District court in Providence ruled in the athletes' favor and ordered the college to reinstate the women's gymnastics and volleyball programs. Brown appealed the ruling, arguing that Brown already offered ample opportunities for women to participate in varsity athletics. The appeals court found that Brown was not in compliance with Title IX. The First Circuit Court of Appeals in Boston upheld the lower court's decision and ruling that Brown violated Title IX and discriminated on the basis of sex when it eliminated four varsity sports teams -- two men's teams and two women's teams. Boucher v. Syracuse University (1999) Boucher and seven other female athletes sued Syracuse University in U.S. District Court for failing to accommodate the interests of female athletes and to provide equal athletic benefits to club team members. Court held that Syracuse had satisfied the second prong of the three alternatives offered by Title IX's three-prong test - "a history and continuing practice of program expansion" by adding women's lacrosse and soccer as varsity sports after the suit was filed. It also noted the existence of formal policies to allow students to bring their interests and abilities to the school's attention. District court emphasized the importance of a paper trail of statistics to accurately portray a school's situation, and formal policies to determine students' interests. "Formal channels for students to report their interests, using surveys and consultants to ascertain interests in the feeder schools and surrounding competitive areas are also important," he suggested. These factors allowed Syracuse to find a "safe harbor" to defend itself against claims of ignoring women's interests.

Notes:

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-A school can prove compliance with Title IX by independently fulfilling the requirements of any one prong from the three-prong test. -In the gender context, there is a less restrictive test than in the racial context. In United States v. Virginia, the court applied intermediate scrutiny determining whether the gender classification served important governmental objectives and that the discriminatory means are substantially related to achievement of those objectives. The state must also offer an exceptionally persuasive justification in support of its discriminatory policy (intermediate scrutiny with a bite). -Strict Scrutiny in the racial context largely limits affirmative action by state actors; whereas intermediate scrutiny permits affirmative action in the context of gender discrimination. -Schools can still comply with Title IX by cutting athletic programs so that mens and womens athletic participation rates become substantially proportionate to their representation in the undergraduate population.

Pederson v. Louisiana State University (2000) Beth Pederson, Lisa Ollar, and Samantha Clark alleged that LSU violated Title IX by not establishing a womens soccer team. district court held that a proportionality test could be used to determine whether LSU violated Title IX. The court held that since the student population at LSU was 49% female, while athletic participation was only 29% female, LSU was in violation of Title IX, a decision that the Fifth Circuit upheld. The Fifth Circuit did: however, reverse the district courts holding that LSUs violation was not intentional. The Fifth Circuit held that although LSU may have ignorantly violated Title IX, it need not have intended to violate Title IX, but need only have intended to treat women differently. The court relied on statements made by university employees, particularly LSUs athletic director, to determine that LSU intentionally treated women differently. Since LSU did not provide women with the same athletic opportunities as it did men, the school intentionally treated women differently. In doing so, the school intentionally violated Title IX.

Notes: -To determine the interests of the students, schools can conduct questionnaires, interview students, have discussions, etc. -Sufficient proof of intentional discrimination enables a plaintiff to recover compensatory damages. -Courts generally give a school some measure of discretion regarding which sports to offer. The 1979 OCR Title IX policy interpretation states: In the selection of sports, the regulation does not require institutions to integrate their teams not to provide exactly the same choice of sports to men and women. However, where an institution sponsors a team in a particular sport for members of one sex, it may be required either to permit the excluded sex to try out for the team or to sponsor a separate team for the previously excluded sex. a. Contact sports Effective accommodation means that if an institution sponsors a team for members of one sex in a contact sport, it must do so for members of the other sex under the following circumstances: 1) the opportunities for members of the excluded sex have historically been limited; and 2) there is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team. b. Non contact sports Effective accommodation means that if an institution sponsors a team for members of one sex in a non-contact sport, it must do so for members of the other sex under the following circumstances: 1) the opportunities for members of the excluded sex have historically been limited; 2) there is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team; and 3) members of the excluded sex do not possess sufficient skill to be selected for a single integrated team, or to compete actively on such a team if selected. 2. Equal benefits and treatment

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McCormick v. School District of Mamaroneck (2004) Plaintiffs alleged that the decisions by the defendant Mamaroneck and Pelham School Districts to schedule girls' high school soccer in the spring of the academic year violated Title IX and its governing regulations. McCormick and Geldwert sought an injunction requiring the school districts to move girls' soccer to the fall. The district court ruled that the school districts' nontraditional scheduling of high school soccer deprived girls but not boys of the opportunity to compete in the New York regional and state championships. The court determined that the girl players were entitled to injunctive relief under Title IX and directed the school districts to develop a plan to offer soccer to boys and girls in the same season. USCA for Second District affirmed but modified the District Court's injunction to allow the School Districts to submit a plan that either alternates the fall soccer season between the girls and the boys or moves girls' soccer permanently to the fall. Daniels v. School Board of Brevard County, FL Daniels I (1997) Daniels as next friend of his daughters, Jessica and Jennifer, sued the school board under Title IX based on disparities between the girls softball and boys baseball programs. The girls team lacked lighting for night play, an electronic scoreboard, batting cage, bleachers, signs, bathroom facilities, a concession stand and press box, etc. District Court held that court held that the cumulative effect of the inequalities between the two athletic programs was significant enough to give the athletes a substantial likelihood of success on the merits in the Title IX and Florida Act claims. The court subsequently entered a preliminary injunction ordering the school to take steps toward equalizing the facilities at the boys baseball field and the girls softball field. The school board was given an opportunity to submit a plan addressing how it would fix the inequities but was told if lights were not installed prior to the start of the season, the boys team would not be permitted to use the lights on their field. The court granted the athletes preliminary injunction and ordered the school board to propose a remedial plan.

Daniels v. School Board of Brevard County, FL Daniels II (1997) The court rejected the boards plan and granted a permanent injunction against the school board. The court noted that the School Board proposes not to spend any funds to remedy the inequities identified in the prior Order, other than the installation of lights for the girls fields, which had previously been approved. However, if the lights were not installed, then the board proposed disallowing the lights for the boys field.

Notes: -Courts do not usually order a school to take a specific action to remedy gender based unequal treatment that violates Title IX, instead courts allow schools the flexibility to formulate their own compliance plan within certain parameters. E. Adverse Effects of Title IX and Policy Implications

Neal v. Board of Trustees of the California State Universities (1999) At issue was the legality of roster size limits as a method of meeting Title IX proportionality. CSUB was trying to cut back on budgets and working to achieve compliance with Title IX. CSUB limited the size of several male athletic teams. Wrestling team brought suit and federal district court enjoined the reduction of rosters. Ninth Circuit vacated the injunction. Court said that its ok to cut rosters in order to comply with Title IX as opposed to having to increase womens rosters for compliance. In an overruling of a district court, the Ninth Court of Appeals held that Title IX does not bar a university from reducing the proportion of roster spots assigned to a team.

Notes: -Courts have uniformly held that cutting mens sports in an effort to achieve substantial proportionality in athletic participation opportunities does not violate Title IX or male athletes equal protection rights. F. Gender-Based Employment Discrimination in Atheltics 1. Wage Discrimination -In Tyler v. Howard University, a womens basketball coach claimed that the disparity between her salary and that of the mens basketball coach and the difference in their office facilities violated Title IX, the Equal Pay Act, and state law. Plaintiff won the case and recovered for damages.

Deli v. University of Minnesota (1994) Plaintiff Deli was seeking to hold the University of Minnesota liable for emotional distress damages arising from its athletic director's breach of an oral promise not to view a

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videotape that contained both the University's gymnastics team performance at a 1992 Florida competition and Deli's sexual encounter with her husband in a Florida hotel room. Court ruled that the trial court erred in awarding emotional distress damages on Deli's contract-based claim because Deli failed to allege or prove the existence of an independent tort. Notes: -When asserting a Title IX violation because of unequal pay, the plaintiff must assert that the disparity is due to the gender of the team coached, rather than the coachs gender! 2. Retaliatory Discharge or Punitive Action

Lowrey v. Texas A&M University (1998) Court dismissed Ps Title IX salary discrimination claim because the court said there is no private right of action under Title IX for employment discrimination but they allowed her retaliation claims and other salary discrimination claims to proceed. With the retaliation claims, the court held that Lowery could make a prima facie case of retaliation under Title IX because the evidence showed the university had reprimanded her for discussing her concerns about alleged Title IX violations with individuals outside the athletic department, and demoted her thereafter.

Notes: -Courts disagree on whether Title IX implies a private right of action for retaliation on behalf of employees of educational institutions who raise concerns regarding compliance with Title IX (although not victims themselves).

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ENTERTAINMENT LAW CASES Shirley Maclaine Parker v. 20th Century Fox Shirley MacLaine Parker contracted with 20th Century Fox to play the female lead in Bloomer Girl. Parker was to be paid $750,000 for the part. Fox informed Parker that they would not be producing Bloomer Girl. As compensation, Fox offered Parker the lead in a dramatic western entitled Big Country, Big Man for the same amount of money - $750,000. Parker refused. Parker then sought recovery of agreed upon compensation. The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. However, before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived; the employees rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages. Wil-Helm Agency v. Lynn Country singer Loretta Lynn, entered into a performance agency contract with Wil-Helm Agency. Doyle Wilburn (one of the partners) began to drink alcohol excessively, becoming extremely abusive. Doyle was drunk on several occasions while acting as Lynn's agent which affected some of her opportunities. Lynn notified the Wil-Helm Agency that it had breached the performance contract and that she would no longer be held to the contract. The Wil-Helm Agency sent Lynn a bill for $178,556 for services rendered. When Lynn refused to pay this amount, Wil-Helm brought an action against Lynn for breach of contract. Lynn filed a cross-complaint against WilHelm, alleging that Wil-Helm breached the contract and owed her damages caused by the breach. The trial court held that Lynn owed Wil-Helm $178,566, that the Wil-Helm Agency breached the performance contract and caused Lynn $178,566 in damages, and that Wil-Helm's breach terminated the contract, thus releasing Lynn for any further performance under the contract. Wil-Helm Agency appealed. The appellate court held that the agent's conduct breached the performance contract, giving Loretta Lynn the right to terminate the agency contract. The conduct of Doyle Wilburn as the representative of the agency was entirely inconsistent with the duty owed the artist under the contract. The agreement is a bilateral contract wherein each party was obligated to the other to render certain performances, the carrying out of which by each party was essential to the realization of benefits under the contract. Each party to the contract was under an implied obligation to restrain from doing any act that would delay or prevent the other party's performance of the contract. Redgrave v. Boston Symphony - The actress Vanessa Redgrave brought suit against the Boston Symphony Orchestra (BSO) for canceling a contract for her appearance as narrator in a performance of Stravinsky's "Oedipus Rex." BSO cancelled the performance in response to public protest over Redgrave's participation because of her support of the Palestine Liberation Organization. Redgrave sought recovery for: Breach of contract for the cancellation of her performance; and Violation of her civil rights under The Massachusetts Civil Rights Act (MCRA). On the breach of contract claim, Redgrave was ultimately rewarded damages in the amount of her stipulated performance fee plus damages for loss of future professional opportunities by potential employers. However, Redgrave did not prevail on the MCRA claim. The court ruled that the BSOs cancellation of the concert was itself an exercise of free speech. Namely, the right to be free from compelled expression. The Court noted that the MCRA is an unusual statute because it creates a private cause of action for the suppression of speech by one private individual or entity of another, whereas the right to free speech traditionally applies only in relation to state action. Minshall v. McGraw Hill - David Minshall had been an investigative reporter with Denver television station KMGH for 17 years when owner McGraw-Hill Broadcasting Company decided not to renew his contract in March 1997. He was more than 50 years old at the time. The 10th U.S. Circuit Court of Appeals upheld a jury's finding that a television

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station violated the Age Discrimination in Employment Act when it terminated a news reporter in the course of a program redesign aimed at appealing to younger viewers. The news director's comments about older employees were not irrelevant "stray remarks," but were connected to the adverse employment decision, the court found. The jury could reasonably infer from the conflicting evidence that Minshall's contract was not renewed on the basis of age, the 10th Circuit said, and upheld awards for back pay, front pay and liquidated damages in excess of half a million dollars. II. CH 7-LABOR LAW & LABOR RELATIONS Topic Notes A. Overview-p 513

NLRA-National Labor Relations Act enacted by Congress in 1935-(known as Wagner Act)-act provides basic legal structure for managing worker relations in U.S. 7 provides 3 basic rights for workers: o Right to form, join and assist labor organizations o Right to bargain collectively through representatives chosen by the workers and o Right to engage in concerted activities such as picketing and strikes to advance and protect their interests. o 8a of the NLRA details prohibited employer conduct like domination ro interference with formation of a labor union. o NLRA prohibits unfair labor practices by a labor union NLRB-National Labor Relations Board-administers and enforces federal labor laws by adjudicating claims of unfair labor practices -If NLRB cannot satisfy a claimant, the complaint goes onto federal courts

NLRB determines which issues are subject to negotiation under the labor laws under the scope of bargaining: Scope of bargaining-includes all issues relating to wages, hours, and terms and conditions of employment. Mandatory Subjects of Bargaining include:-both sides must negotiate in good faith over these. -Wages-pay, fringe benefits, and bonus payments -Hours-time spent on the job -Working conditions-factors influencing the work environment, such as work rules, seniority, and safety. -A failure to bargain in good faith over mandatory subjects of bargaining is a violation of 8 of the NLRA, an unfair labor practice. If an issue is not a mandatory subject of bargaining, it is either a permissive or illegal subject. Permissive subject of bargaining:-nonmandatory lawful subject of bargaining.-->management may negotiate a union on the issue, but is not required to do so. Illegal subject of bargaining-if one or more laws prohibit it from being implemented even if it were successfully negotiated. Note: those persons who are not currently active players in a league are NOT members of the union and have no vote and little voice in union affairs.

B. Intersection of Antitrust & Labor Law

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Combined effect of the Clayton Act and the Norris-LaGuardia Act has created a statutory exemption which provides labor unions with immunity from antitrust liability for its unilateral efforts to further its members economic interests. Non-statutory labor exemption: Result of 3 Supreme Court decisions that relate to antitrust challenges against joint actions taken by employers acting in concert with unions (Allen Bradley, Amalgamated Meat Cutters, United Mine Workers) o Courts found the unions have a non-statutory labor exemption: 1.-Implied labor exemption from antitrust laws to enter into Ks with multiemployer bargaining units 2. The right to advance legitimate employee goals that restrain trade no more than is necessary to achieve those goals.

See Mackey Case below-for the 3-factor test applied in most court cases-(note Clarett II decision distinguishes how to apply it.) -Thus, a Collective Bargaining Agreement-CBA between a union and employers is exempt form antitrust challenges unless it violates certain criteria. 1. Initial Judicial Development and Application of the Non-statutory Labor Exe Mackey v. NFl , 543 F.2d 606, 8th Cir., 1976

P-present and former NFL players D-Rozelle-Commiss, NFL, member NFL teams FACTS: -Appeal by NFL and member clubs from a district court judgment holding the "Rozelle Rule" to be violative of 1 of the Sherman Act, and enjoining enforcement. Ps-alleged that the D's enforcement of the Rozelle Rule constituted an illegal combination and conspiracy in restraint of trade denying pro football players the right to freely contract for their services, seeking injunctive relief and treble damages. Dis. Court held: D's enforcement of the Rozelle Rule was a concerted refusal to deal and a group boycott, and thus a per se violation of the Sherman Act. Alternatively, finding that the evidence offered in support of the clubs' contention that the Rozelle Rule is necessary to the successful operation of the NFL insufficient to justify the restrictive effects of the Rule, the court concluded that the Rozelle Rule was invlaid under the Rule of Reason Standard. -The D's also alleged the Rozelle Rule was immune from attack because it had been the subject of collective bargaining agreements between teh club owners and the NFL Players Association (NFLPA) Reserve System-NFL History: The NFL has used reserve system where every player who signs a K with an NFL club is bound to play for that club and no other for the term of the K plus 1 additional year at the option of the club.

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-Once a player signs a Standard Player K, he is bount to his team for at least 2 years. BUT he may become a free agent at the end of the option year by playing that season under a renewed K, rather than signing a new one, but he is subject to a 10% salary cut during the year. -Prior to 1963, a team signing a free agent who had previously been under a K to another club was not required to compensate the player's former club. In 1963 , after RC Owens played out his option with the 49ers and signed a K with the Baltimore Colts, the member clubs of the NFL unilaterally adopted the Rozelle Rule as an amendment to the League's Constitution and By-laws: Rozelle Rule: (p 520) ...Whenever a player, becoming a free agent in such manner, thereafter signed a K with a different club in the League, then, unless mutually satisfactory arrangements have been concluded between 2 League clubs, the Commissioner may name and then award to the former club 1 or more players, from the Active, Reserve, or Selection List-(including future selection choices) of the acquiring club as the Commissioner in his sole discretion deems fair and equitable, any such decision by the Commissioner shall be final and conclusive. From 1963-74: -176 players played out their options. -Of that number, 34 signed w/other teams. -In 3 cases, the former club waived compensation. -In 27 cases, the clubs involved mutually agreed upon compensation. Commiss. Rozelle awarded compensation in the 4 remaining cases Labor Exemption Issue: -To determine the applicability of the nonstatutory exemption, it must first be determined whether there has been any agreement between the parties concerning the Rozelle Rule. Governing Principles: -Under the general principles surrounding the labor exemption, the availability of the nonstatutory exemption for a particular agreement turns upon whether the relevant federal labor policy is deserving of pre-eminence over federal antitrust policy under the circumstances of the particular case. Court finds: 1)Labor policy favoring collective bargaining may potentially be given pre-eminence over the antitrust laws where the restraint on trade primarily affects only the parties to the collective bargaining relationship... 2) federal labor policy is implicated sufficiently to prevail only where the agreement sought to be exempted concerns a mandatory subject of collective bargaining. 3)The policy favoring collective bargaining is furthered to the degree necessary to override the antitrust laws only where the agreement sought to be exempted is the product of bona fide arm's length bargaining. Antitrust: -The Defendants argue that the only product market arguably affected by the Rozelle Rule is the market for players' services, and that the restriction of competition for players' services is not a type of restraint proscribed by the Sherman Act.-D's rely on 6 of the Clayton Act and the Apex Hosiery Case: in that case the employees themselves actually imposed the restraints on themselves. ISSUE:

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1) Whether the so-called labor exemption to the anti-trust laws immunizes the NFL's enforcement of the Rozelle Rule from antitrust liability? and 2) Whether the Rozelle Rule and the manner in which it has been enforced violate antitrust laws? RULE: Definition of Mandatory Subject of Bargaining:(p520) 8d of the NLRA, pertain to "wages, hours, and other terms and conditions of employment" -Whether an agreement concerns a mandatory subject depends not on its form, but on its practical effect.. APPLICATION: 1)-Applying the principles to the facts presented here, we think it clear that the alleged restraint on trade effected by the Rozelle Rule affects only the parties to the agreements sought to be exempted 2) Mandatory Subject of Bargaining; -On its face the Rozelle Rule does not deal with "wages, hours, and other terms or conditions of employment" BUT with inter-team compensation when a player's contractual obligation to 1 team expires and he is signed by another-viewed as this it would not indicate a mandatory subject of bargaining, BUT -the Rule operates to restrict a player's ability to move from 1 team to another and depresses player salaries. Thus, this court holds that the Rozelle Rule constitutes mandatory bargaining subject w/in the meaning of the NLRA. Bona Fide Bargaining: -Court finds substantial evidence to support the conclusion that there was no bona fide arm's length bargaining over the Rozelle Rule preceding the execution of the 1968, 1970 agreements. The NFLPA stood in a weak bargaining position during those years (1974) and the Rozelle Rule was unilaterally imposed on the players. The Rule imposes significant restrictions on players Thus, the agreements between the clubs and the players embodying the Rule do no qualify for the labor exemption. Antitrust:1 of Sherman Act: Players' Services As a Product Market -On the surface the language the D's use gives merit to their argument. BUT-6 of the Clayton Act was enacted for the benefit of unions to exempt certain of their activities from the antitrust laws after courts had applied the Sherman Act to legitimate labor activities. -Other pro sports have been held to the Sherman Act when the owner imposed restraints on competition for players services, Thus, the restraints in this case on the players' services fall w/in the ambit of the Sherman Act. Per se violation: -The district court applied the per se approach, but this court disagrees. -Although the NFL is similar to a joint venture, it actually does not want to drive any of its members out of business while competing with them, thus inappropriate to mechanically apply the per se illegality rules here. Also the court has already undertaken a lengthy analysis, it might as well continue. Rule of Reason: -Evidence showed that the Rozelle Rule deflated players salaries but that without it there would be increased movement in interstate commerce of players from 1 club to another. The D's argued that w/out the rule it would create an unbalanced league where all the star players would go to one

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team, that the rule was necessary to protect the teams expenses in scouting players and player development costs. The D's also asserted this rule would lead to greater comraderie by keeping teams together, which would create a better product for consumers. Court finds that due to the unlimited duration of the rule, the weak other arguments made, and that player continuity is already effected by trades, new draft picks, retirements, etc, the Rozelle Rule is an unreasonabl restraint on trade, violating the Sherman Act. CONCLUSION: -See Note 2-p 524: In Reynolds case, following Mackey, a court found because there was a fair collective bargaining agreement made between the players association and the NFL, the restraints on trade were allowable. See 524: Wood v. Nat'L Basketball Assn., 809 F.2d 954 (1987) -2nd Cir. held that even players such as draft-eligible rookies who are not yet playing in the league are barred from challenging the terms of an existing collective bargaining agreement on antitrust grounds. Sixers, 1st round draft pick was only offered a 1 year $75,000 K because the Sixers had exceed the NBA salary cap, this was the maximum allowable under the NBA collective bargaining agreement which the Sixers could offer that year. Wood claimed the NBA Salary cap violated antitrust laws, by reducing competition among league clubs for services of college b-ball players. Held: NO violation of antitrust due to NBA players' union collective bargaining agreement was made fairly. Wood's only claim for harm to his ecnomic interests was against the NBA's player union for breaching it duty of fair representation. 2. Judicial Extension of the Scope of the Nonstatutory Labor Exemption Powell v. NFL , 930 F.2d 1293, 8th Cir., 1991 Case Brief

P-M.Powell and 8 other NFL players, the players' collective bargaining rep., the NFL players association D-NFL FACTS: The appeal focuses on the provision of the Players' collective bargaining agreement establishing a "Right of First Refusal/Compensation System"-the employment terms restrict the ability of players to sign with other teams-also called "free agency" The D-NFL contends the challenged practices are the product of bona fide arm's length collective bargaining and therefore are governed by federal labor law to the exclusion of challenge under the Sherman Act, 1-7. -The Players argue that the labor exemption to the antitrust laws expires when parties reach impasse in negotiations and that the First Refusal/Compensation system therefore may be challenged as an unlawful restraint on trade. First Refusal Right/Compensation System: -provided that a team could retain a veteran free agent by exercising a right of 1st refusal and by matchign a competing club's offer.

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-IF the old decided not to match the offer the old team would receive compensation from the new team in the form of additional draft choices. This system was substantially modified into a successor agreement in 1982. -After the 1982 Agreement expired in Aug. 1987, the League maintained the status quo on all mandatory subject of bargaining covered by the Agreement, including the First Refusal Right. -Sept. 1987, after intermittent negotiations on a successor collective bargaining agreement proved unsuccessful, the Players, initiated a strike over veteran free agency and other issues. --The strike ended in mid-Oct. 1987, w/out producing a new agreement. -The Players commenced this antitrust action claiming the 1982 Agreement expired. The parties agree: the First Refusal System: 1)primarily only affected the parties in the collective bargaining relationship. 2)concerned a mandatory subject of collective bargaining; and 3)were the product of bona fide, arm's length bargaining. The players, argue that the court should accept the District Court's impasse test and conclusion as inherently balanced. BUT must examine labor law requirements first: (p 527) 1. After expiration of a collective bargaining agreement, there is a continuing obligation to bargain. NLRA 8a5 2. Before the parties reach impasse, the employers are obligated to "maintain status quo" as to wages and working conditions. 3. AFter impasse, an employer's continued adherence to the status quo is authorized. At the same time, once an impasse in bargaining is established, employers become entitled to implement new or different employment terms that are reasonably contemplated w/in the scope of their pre-impasse proposals. 4. IF-employers exceed their labor law rights in implementing employment terms at impasse, the full range of labor law rights and remedies is available to unions.

ISSUE: Whether the nonstatutory labor exemption in the NFL expired when a 1982 Agreement expired or whether this exemption continues to protect the league from potential antitrust liability even after an impasse? RULE: p 528-After a collective bargaining agreement has expired: -an employer is under an obligation to bargain with the union before it may permissibly make any unilateral change in terms and conditions of employment which constitute mandatory subjects of collective bargaining. p 528-After impasse, an employer may make unilateral changes that are reasonably comprehended w/in its preimpasse proposals. -p 528-Good Faith Bargaining must occur, even to the point of impasse, regardless of the lack of substantive influence of the union's proposals in the negotiations. -If an impasse occurs and the employer's unilateral terms were offered to the union, the employer should be deemed not to have violated any labor law.

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APPLICATION: -Thus, based on the labor law requirements, the NFL and the Players are not at the point to permit an action under the Sherman Act. CONCLUSION: -The NFL and the Players have accepted this "level playing field" as basis for their relationship, and court believes there is substantial justification for the parties to continue to fight on. -The players never contended that the NFL's proposals were made in bad faith. -National Labor Policy should sometimes override antitrust policy and we believe that this case presents that occasion. Thus the parties may: 1. bargain further 2. result to economic force-lockout/strike 3. The may present claims to the NLRB -Until the NLRB has final resolution the labor relationship continues and the exemption applies. Thus, the nonstatutory labor exemption extends in this case beyond impasse. Brown v. Pro Football Inc. , 518 U.S. 231, 1996 Case Brief P-Brown and other NFL players D-Redskins, other NFL teams FACTS: -In 1987, a collective-bargaining agreement between the NFL and the NFL Players Association, expired. -The two parties began to negotiate a new contract. -March 1989, during the negotiations, the NFL adopted Resolution G-2- a plan permitting each club to establish a "developmental squad" of up to 6 rookies or 1st year players who as free agents had failed to secure a position on a regular player roster... (Squad members would play in practice games and sometimes in regular games as substitutes for injured players) Resolution G-2 provided that the club owners would pay all squad members the same weekly salary. NFL Proposal: -The next month, this plan was presented to the NFL Players Association with the league proposing a squad player salary of $1,000 per week. The Players Association disagreed. It insisted that the club owners give the developmental squad players benefitis and protections similar to those provided regular players and that they leave individual squad members free to negotiate their own salaries. -2 months later: Negotiations on this issue reach impasse

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NFL implements G-2 Plan: -unilaterally implemented this plan -threatened to fine teams and take draft choices if they did not follow G-2 plan. -A month later this action was brought, players claimed the G-2 Plan violated Sherman 1-restraint of trade- of the antitrust laws. -District Court denied employers' claim of exemption form antitrust laws, permitted case to reach the jury, which found for players. Court of Appeals Reversed. ISSUE: Whether, at impasse an employers' agreement of salary terms can withstand antitrust liability and be implemented as the last best bargaining offer (yes-provided employer follows other labor requirements). -Thus, what is the scope of the nonstatutory labor exemption? RULE: p 532-The implicit exemption recognizes that to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place, some restraints on competition imposed through the bargaining process must be shielded from antitrust sanctions.. p 533-The labor laws give the NLRB, not antitrust courts, primary responsibility for policing the collectivebargaining process. APPLICATION: -p 533-IF the antitrust laws were to apply to employers per se after impasse, what would employers do once they have reached impasse? -Introducing antitrust liability here, threatens to introduce instability and uncertainty into the collectivebargaining process, because antitrust law often forbids or discourages the kinds of joint discussions and behavior that collective bargaining processes invite or may require. -Impasses is temporary, thus bargaining continues anyhow. CONCLUSION: -Affirms Court of Appeals in favor of league. J. Stevens, Dissenting: The statutory labor exemption protects the right of workers to act collectively to seek better wages, but does not exempt concerted action or agreements between unions and nonlabor parties. unique to this situaton: 1.-Player salaries are individually negotiated; this began even before collective bargaining. 2.respondent concedes that the employers imposed the wage restraint to force owners to comply with league wide roster requirement rules--->the league could have done this without influencing player salaries or limiting them.

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3. Once the Players' Union responded to the initiona G-2 proposal by the employers, the employers refused to continue to bargain and unilaterally made this implementation. Thus, Stevens does not see why employers should be exempt from antitrust in this case. A. Decertifying as a Union Topic Notes *See p 530-McNeil v. NFL case: -After the Powell decision, the NFL Players' Association chose to decertify as a union, allowing them file an antitrust lawsuit. This allowed the players to give up rights under the collective bargaining agreement at issue. Thus, w/out the collective bargaining agreement, there was no justification for the NFL's restrictive trade practices, particularly the Right of First Refusal system. NFL players won most of the class-action lawsuits for anti-trust violations against the NFL following decert., and settled in 1993. The last settlement, became part of a new collective bargaining agreemetn, after the players association recertified as a union. Clarett v. NFL Clarett I , 306 F. Supp. 2d 379, 2004 Case Brief P-Mo Clarett D-NFL FACTS: -After Maurice Clarett a star college football player was ruled inelgible for his sophomore season of college football he sought to enter the NFL draft. However, the NFL had a rule preventing anyone who was not 3 years removed from high school from entering the Draft. Clarett alleged the Rule was an illegal restraint fo trade because the teams had agreed to exclude a broad class of players from teh NFL labor market, thus constituting a "group boycott" -under Sherman Act 1-(p 541) NFL & Collective Bargaining Agreement: -Current CBA took effect in 1993 and expired in 2007. 2 provisions of the CBA are at issue in this case: Article III 1: which provides that the "Agreement represents the complete understanding of the parties on all subjects covered herein, and that there will be no change in terms and conditions without mutual consent..." Article IV 2-"No Suit" -provides that neither the NFL players association nor any of its members, etc. will sue the NFL or its teams relating to

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the provisions of the CBA and the Constitution and Bylaws of the NFL Clarett and the NFL disagree on whether: the 2 provisions establish that the NFL and the Players' union actually bargained over the terms of the Constitution and Bylaws-->(which contained the elgibility rule) OR -whether the groups merely bargained away the NFLPA's ability to bargain voer or challenge the Bylaws' provisions. The Eligibility Rule: -States only 3 full college seasons have elapsed since high school graduation are required in order to file an application to NFL to be drafted. Non-statutory labor exemption: NFL Argues: -that the Eligibility Rule is immune from antitrut scrutiny based on what has come to be known as the nonstatutory labor exemption... Court cites Mackey for the legal principle of the 3-factored test to determine whether the exemption applies: (p541)-but not used in 2nd Cir. (only 6, 8, 9th Cir. use this) 1)Labor policy favoring collective bargaining may potentially be given pre-eminence over the antitrust laws where the restraint on trade primarily affects only the parties to the collective bargaining relationship... 2) federal labor policy is implicated sufficiently to prevail only where the agreement sought to be exempted concerns a mandatory subject of collective bargaining. 3)The policy favoring collective bargaining is furthered to the degree necessary to override the antitrust laws only where the agreement sought to be exempted is the product of bona fide arm's length bargaining. ISSUE: 1. Whether the non-statutory labor exemption applies to the NFL's age eligibility requirement for those entering the NFL draft?-NO RULE: -The labor laws and exemption cannot be used to shield anticompetitive agreements between employers and unions that affect only those outside of the bargaining unit.(542) -Those who are categorically denied eligibility for employment cannot be bound by the terms of employment they cannot obtain. APPLICATION: Scope of Nonstatutory Labor Exemption:(p541) Court cites the Brown Case that the labor exemption is limited to mandatory subjects of collective bargaining and it covers only conduct that arises from the process. -Notes, the exemption can only cover actions that affect employees w/in the bargaining unit or those seeking to become employees and who will therefore be bound by those actions.

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Rule Does Not address a Mandatory Subject of Collective Bargaining: -The Rule provides that for college players seeking special eligibility, "at least 3 full college seasons must have elapsed since high school graduation"-->Court states: nowhere in this rule is there reference to "wages, hours, or conditions of employment." and that wages, hours, etc. affect only those who re employed or eligible for employment. NFL cited 3 cases to stand for that the draft itself is protected by nonstatutory labor exemption and thus, rules governing the draft are protected.-p 542 It cites, the Wood case-(rookie for NBA was held to minimum rookie salary due to CBA), Williams case-(involved CBA about negotiating player salaries, and Caldwell case-(P challenged his discharge of employment), -Court notes all 3 cases involve wages and conditions of employment and thus, are mandatory subjects of bargaining. Nonstatutory Labor Exemption Cannot Apply to Those Who Are Excluded from the Bargaining Unit: -Exemption is inapplicable according to court because the Rule only affects players, like Clarett, who are complete strangers to the bargaining relationship. -Court distinguishe's Clarett's situation from Wood, stating: "Clarett's eligibility was not the union's to trade away" NFL Fails to Show Rule Arose from Arm's Length Negotiations: The Rule was first adopted in 1925 and the Players' Association was not formed until 1956 and the first CBA was not adopted until 1968. -From these facts it seems clear that the Rule could not have arisen from the CBA process and the NFL offers no evidence that the Rule was addressed during the CBA negotiations in 1993. CONCLUSION: Thus, Rule violates antitrust laws and Clarett is eligible for the 2004 draft. Motion for stay is denied. NFL then filed emergency appeal in 2nd Cir. Clarrett v. NFL-Clarett II , 369 F.3d 124, 2d, 2004 Case Brief -overrules Clarett I in favor of barring Clarett from Draft FACTS: -P-Clarett argues NFL clubs are horizontal competitors for the labor of pro football and thus may not agree taht a player will be hired only after 3 years of full football seasons have elapsed following player's high school graduation. -D-NFL argues that it is organized around a CBA relationship, which is provided for and promoted by federal labor law and that NFL clubs are a multi-employer bargaining unit, are able to act jointly in setting the terms and conditions of players' employment and the rules around these terms, without risking violations of the antitrust laws. Court states: it has never regarded the 8th Cir. test in Mackey as defining the appropriate limits of the nonstatutory labor

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exemption.--->thus the district court below erred. *Clarett fails to contend that the NFL's draft eligibility rules work to the disadvantage of the NFL's competitiors in teh market for pro football or in some manner protect the NFL's dominance in that market. -He challenges the eligibility rules only on the ground that they are an unreasonable restraint upon the market for players' services. -Thus, court need not decide whether the Mackey factors apply because Mackey factors characterize teh limits of the exemption in cases in which employers use agreements with their unions to disadvantage their competitors in the product or business market. -Clarett next argues: because the rule excludes him from entering the market altogether, it constitutes a per se antitrust violation. ISSUE: -Whether subjecting the NFL's eligibility rules to antitrust scrutiny would "subvert fundamental principles of our federal labor policy"?-YES RULE: p 548-The reach of labor law policies extends as far as is necessary to ensure the successful operation of the collective bargaining process and to safeguard the "unique bundle of compromises" reached by the NFL and the players' union as a means of settling their difference. (p546)-Eligibility rules are mandatory bargaining subjects -(p547)-(the union agreed to waive any challenge to the Constitution and Bylaws and thereby acquiesced in the continuing operation of the eligibility rules contained therein--at least for the duration of the agreement...) -The players union's representatives posseses "powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents.. -Simply because eligibility rules work a hardship on prospective rather than current employees does not render them impermissible . APPLICATION: --->Eligibility rules cannot be viewed in isolation because their elimination might well alter certain assumptions underlying the collective bargaining agreement between the NFL and its players union. 1. Prospective NFL players no longer have the right to negotiate directly with the NFL teams over the terms and conditions of their employment, instead the CBA process with the players' union and the NFL governs this aspect. (p546)-Because NFL players have unionized and have selected the NFLPA as its exclusive bargaining representative, labor law prohibits Clarett from negotiating directly the terms and conditions of his employment with any Thus, the union or the NFL could have forced the other to the bargaining table if either felt that a change was warranted.NFL club...and an NFL club would commit an unfair labor practice were it to bargain with Clarett individually w/out the union's consent.. Thus, the union or the NFL could have forced the other to the bargaining table if either felt that a change was warranted.

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CONCLUSION: -p 548-To hold the eligibility rule in violation of antitrust laws would contradict prior decisions recognizing labor law policies that warrant withholding antitrust scrutiny are not limited to protecting only explicit terms contained in collective bargaining agreement. 3. Continued Viability of Antitrust Litigation in Player-Management Conflicts Topic Notes

Courts generally hold that the nonstatutory labor exemption does not bar an antitrust challenge by

nonparties to collective bargaining agreement terms that have anticompetitive effects outside the labor market for players' services (Philadelphia Wold Hockey Club Case) Nonstatutorty labor exemption likely does not apply to individual-performer sports like tennis, golf, boxing, etc. because they generally are not unionized who engage in cba--->forming an athletes' association and entering into agreements with tournament organizers, does not generally constitute CBA activities. Clarett v. NFL , 306 F.Supp. 2d 379, S.D.N.Y., 2004 Case Brief Merits of Clarett's antitrust claim from original decision -important for Rule of Reason procedural analysis FACTS: The average starting running back in the NFL amkes only slightly less than the average teams do in the CFL and the AFL. -The NFL represents an unparalleled opportunity for an aspiring football player in terms of salary, publicity, endorsement opportunities and level of competition. Clarett's antitrust claim merits: Application of Rule of Reason:-p 551 -In evaluating a rule of reason case on summary judgment, courts employ a 3 step, burden-shifting test: -1)Under this test, P bears initial burden of showing the challenged action has had an actual adverse effect on competition as a whole in the relevant market. 2) then the burden shifts to the D to offer evidence of the pro-competitive "redeeming virtues" of their combination. 3) if D can prove the redeeming virtues, then the burden shifts back to P for it to demonstrate that any legitimate collaborative objectives proffered by the D could have been achieved by less restrictive alternatives, (those less prejudicial to competition as a whole. ISSUE: RULE: Quick Look Rule of Reason Analysis-is appropriate where the likelihood of anticompetitive effects can easily be

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ascertained and an observer with even a rudimentary understanding of economics could conclude that the arrangements in ? would have an anticompetitive effect. (similar to per se, but at a more intermediate level) APPLICATION: Eligibility Rule as Naked Restraint of Trade: -Court analogizes Clarett's case to Denver Rockets v. All-Pro Management-where the court held the NBA's 4-year college rule constituted a "primary" concerted refusal to deal wherein the actors at one level of trade pattern (NBA teams) refuse to deal with an actor at another level (those ineligible under the NBA's 4-year college rule-->thus illegal and unreasonable restraint of trade Harm resulting from a "Primary" Boycott is 3-fold: 1)victim of the boycott is injured by being excluded from market he seeks to enter. 2)competition in the market in which the victim attempts to sell his services is injured. 3)by pooling their economic power, the individual members of a league have, in effect, established own private government. *This is only true wehre the members of the combination possess market power in a degree approaching a shared monopoly. -Court says true in Clarett case that the NFL is a monopoly and is implementing a primary boycott. -Court also says the quick look rule of reason is appropriate in this case, because the restriction is blatant and Clarett has thus established a violation of Sherman Act 1. Rule Has No Legitimate Procompetitive Justification: -NFL offered 4 justifications for procompetitiveness of the eligibility rule 1.-protecting younger players from injury 2.-protecting NFL's entertainment product from adverse consequences due to injuries 3. protecting the NFL from costs entailed by such injuries. 4. protecting from injury other adolescents who would over-train. Court says, protecting younger persons from injury has nothing to do with procompetitive benefits, that the NFL has not appropriately defined its market under theory #2 and the NFL's desire to keep its own costs down is not a legitimate procompetitive justification. Less Restrictive Alternatives To the Eligibility Rule exist: -Court says instead of an arbitrary, blanket restriction based on time and age, the league could give individual potential players examinations and then determine if they were ready to go pro. Thus, as before, the Court found for Clarett. CONCLUSION: See note 2-Single Entity Defense-p 555: Structure of MLS-prevents it from being subject to antitrust action under 1 of Sherman because it is legally defined as a limited liability corporation controlling player contracts, thus even if the restraint on trade is unreasonable, as a single entity, the MLS cannot violate 1 of the Sherman Act. 1st Circuit-bottom p 556 disagrees.

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C. Union's Duty of Fair Representation Topic Notes p 581: NLRA grant to a union exclusive negotiating and other rights to act on behalf of all members of the CB unit. 1944-SCOTUS held that the NLRA implicitly required a union to fairly represent all members of the collective bargaining unit. NLRB has determined that a union's breach of its duty of fair representation is an unfair labor practice. Miranda Fuel Co. case (1962) Hiring Hall Concept:-duty of union hs been extended to include incoming rookie players. Peterson v. Kennedy , 771 F.2d1244, 9th Cir., 1985 Case Brief p 581 P-J. Peterson D-NFL Players' Association and 2 of its attorneys. FACTS: James Peterson brought suit against the NFLPA alleging the union, through its attorneys, had furnished him with inaccurate advice upon which he detrimentally relied, pursuing a grievance against his ex-ballclub Tampa Bay Bucs. District Court-granted judgment notwithstanding the verdict for D's after the jury decided in Peterson's favor. Peterson appealed. P's breach of duty claim is based principally on allegations that the union, through its representative, erroneously advised him to file an injury grievance and that the union failed to rectify its error while it had time. -Viewed in a light most favorable to P, the evidence at trial established that one of the union reps, after being informed that Peterson's 1977 K contained an injury protection clause, advised Peterson's agent to file an injury grievance against the Bucs and advised Peterson to designate his claim as an injury grievance. The union failed to recognize its error w/in the 60 day grace period in which a non-injury grievance could have been timely filed. -Union reps assured Peterson on many occasions during the 60 day period that the union was handling everything for him. Thus, Peterson detrimentally relied on this advice and failed to file the necessary non-injury grievance. The district court concluded the evidence presented was legally insufficient to sustain the jury's verdict. ISSUE: RULE: p 582-The duty of fair representation is a judicially established rule imposed on labor organizations because of their status as the exclusive bargaining representative for all of the employees in a given bargaining unit.

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A union breaches its duty of fair representation only when its conduct toward a member of the collective bargaining unit is "arbitrary, discriminatory, or in bad faith" Mere negligent conduct on the part of a union does not constitute breach of the union's duty of fair representation. A union's conduct must be so egregious as to be arbitrary to give rise to a breach of duty claim. -A union acts arbitrary when: it simply ignores a meritorious grievance or handles it in a perfunctory manner... (ex: like failing to conduct a minimal investigation of a grievance that is brought to its attention..conduct is w/out rational basis) APPLICATION: -In Robesky-Held: union breached duty because its unintentional mistake was arbitrary if it reflected a "reckless disregard" for the rights of the individual employee... -Court has never held that a union has acted in an arbitrary manner where the challenged conduct involved the union's judgment as to how best to handle a grievance. -Union did not breach its duty of fair representation to Peterson as a matter of law.-->affirm district court's conclusion -Application of rule(-Because a union balances many collective and individual interests in deciding whether and to what extent it will pursue a particular grievance, courts should accord "substantial deference" to a union's decisions regarding such matters.) -The duty of fair representation is designed to ensure that unions represent fairly the interest of all their members without exercising hostility or bad faith toward any. CONCLUSION: -Sound policy reasons militate against imposing liability on unions for errors of judgment made while representing their members in the CBA.

Arbitration and Alternative Dispute Resolution Sports Law p330-352, 612-655 Regulating Olympic and International Athletes: Court of Arbitration for Sport (CAS) 1. Doping Violations and Sanctions USA Shooting and Q. v. International shooting Union (ISU) (Quigley) p334 Facts: US shooter about to win gold. The night before the last event, he became extremely ill, and took some medication. In that medication, there was a banned substance. He ended up winning the medal the next day, and the ISU wishes to take his medal away. They wish to impose a strict liability test for banned substances. Holding: the language of the statute within the governing body does not include a strict liability test when it comes to banned substances. Therefore, shooter retains his medal, and International Shooting should change the language to strict liability, if thats how they want to enforce it. Rule: The default rule will be intent, unless otherwise specified. There is no strict liability allowed without notice.

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Federation Internationale De Natation Amateur (FINA) p339 Facts: Same case as above. Swimmer has banned substance and wishes to challenge stripping of the gold. Holding: FI has strict liability rules within their code. Therefore, she had notice and cannot get her medal back. Rule: If the rules contain notice for strict liability for banned substances, then the athlete may not get the medal back. 2. Disputed Competition results Yang Tae Young v. International Gymnastics Federation p348 Facts: In gymnastics they use a code of points. The judges gave Yang the wrong starting value for his routine. Holding: For the reasons below, the appeal was dismissed. Rules: For the score to be overturned there must have been some evidence of preference for or prejudice against a particular team or individual. You cannot review or arbitrate a referees call unless it is induced by fraud or corruption. There is a good faith premise when it comes to a referees call. The solution for a disputed call does not lie within arbitration, but within the sports own rules. Labor Law and Labor Relations: Labor Arbitration 1. Wide Impact Arbitration Introduction- In Baseball before free agency, a player was tied to one club through the Reserve Clause and the NSLE. Owners could perpetually renew a players option year. Until the 1970 CBA, the Commissioner was the final arbiter of disputes, but in that CBA, the players gained the right to go to binding, impartial arbitration. MLB- Players didnt win free agency in the courts (Flood), but won it back in arbitration (Messersmith and McNally) NFL (and all pro sports) Players won free agency in the courts (Mackey), gave it back in CBA, but won it again in the 1992 CBA. National and American League Professional Baseball Clubs v. Major League Baseball Players Assoc. p614 Messersmith and McNally (NALPBC v. MLBPA) Facts: These pitchers finished their contract years in 1975 and played out their option years in 1976 (pursuant to CBA clause 10A). The clubs tried to renew the option year, but the players balked and asked for arbitration. Issue: Is this dispute over the option year eligible for arbitration, and if so, is the perpetual renewal valid? Holding: 1) This clause should be arbitrated under S. CTs holding in The Steelworkers Trilogy, which creates a heavy presumption of arbitrability - matters are excluded from arbitration only if the CBA explicitly provides. Here, the CBA did not discuss the reserve system, so it was a proper subject of arbitration. (2): The option year clause of the players contract does not create a perpetual reserve system. A contract must explicitly give the owner unlimited rights to renew. Here, the option year is for one year only, and Free Agency begins. 2. Defining the Scope of Judicial Review Kansas City Royals v. Major League Baseball Players Assoc. p618 -Good illustration of how grievance arbitration works in sports. Facts: Major league baseball team brought action against association of major league baseball players seeking to have award of arbitration panel in favor of the free agent status of two major league baseball players who had played out their renewal years set aside. The other 23 major league baseball teams intervened. The District Court ordered the award of the arbitration panel enforced and the baseball teams appealed. Holding: The Court of Appeals held that arbitration provision of agreement between the players' association and the team owners was broad enough to cover the dispute in question; that history of negotiations of the instant contract and prior contracts did not evince a sufficiently strong intent not to arbitrate grievances involving the reserve system as to overcome the presumption of arbitrability; that the documents in question were susceptible of the interpretation given to them by the arbitration panel; that the decree did not impermissibly operate against entities not party to the arbitration proceedings or the district court action; and that the decree was not vague and indefinite as to the act or acts which it enjoined.

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Rule: There is a heavy presumption of arbitrability and of the correctness of an arbitrators award if it emanates from the CBA. Major League Baseball Players Assoc. v. Garvey p622 Facts: After the Major League Baseball Players Association filed grievances against the Major League Baseball Clubs, arbitrators found that the Clubs had colluded in the market for free-agent services in violation of the industry's collective bargaining agreement. To cover damages, the Association and Clubs entered into an agreement, which provided funds and framework to resolve individual player's claims. Steve Garvey, a first baseman, submitted a claim alleging that the San Diego Padres did not extend his contract to the 1988 and 1989 seasons due to collusion. Under the framework, the Association denied Garvey's claim. Agreeing, the arbitrator determined that Garvey did not receive a contract extension due to collusion and found that Garvey had not shown a specific offer of extension. Ultimately, the Court of Appeals reversed the District Court's denial of Garvey's motion to vacate the arbitrator's award. The appellate court, under the Labor Management Relations Act, directed the arbitration panel to enter an award for Garvey because it concluded from the arbitration proceedings that an offer was made to Garvey and that it was withdrawn due to collision. Issue: Did the Court of Appeals err in reversing the District Court's denial of a baseball player's motion to vacate an arbitration award and in directing the arbitrator to enter judgment in favor of the player, where the arbitrator denied the player's claim? Holding: The Court reversed the Court of Appeals' determination because it conflicted with the Court's cases limiting review of an arbitrator's award entered pursuant to an agreement between an employer and a labor organization and prescribing the appropriate remedy where vacation of the award is warranted. Rule: Judicial review of a labor-arbitration decision pursuant to such an agreement is very limited. Courts are not authorized to review the arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement. Even 'serious error' on the arbitrator's part does not justify overturning his decision, where, as here, he is construing a contract and acting within the scope of his authority." 3. Salary Arbitration Today: Free Agency with salary arbitration. In NALPBC v. MLBPA (above) The owners and players agreed free agency after 6 years of service - the MLBPA didnt want to flood the market and drive salaries down - also, this way, under the arbitration system, the free agent market becomes the benchmark for all other player salaries. 4. Contract Dispute Arbitration a. Failure to Honor Contract and Remedies for Enforcement Boston Celtics Limited Partnership v. Brian Shaw p634 Facts: In 1988, Shaw signed a one year contract with the Celtics. In 1989, Shaw signed a two-year contract to play with an Italian team, Il Messaggero Roma. At the end of January 1990, Shaw signed a 5 year deal with the Celtics. In June of that year, Shaw told the Celtics he planned to play for Il Messaggero during the 1990 season. The Celtics filed action for enforcement of arbitrator's decision that player had to keep his promise to cancel his commitment to play for Italian basketball team so that he could play for domestic team instead. Holding: The District Court ordered enforcement, and player appealed. The Court of Appeals held that: (1) arbitrator's decision had plausible basis; (2) domestic team was entitled to preliminary injunction; and (3) expedited procedures for enforcing arbitration agreement were proper. b. Club and League Power to Discipline NBA Players Assoc. on behalf of Player Latrell Sprewell and Warriors Basketball Club and NBA p638 Facts: NBA player attacked his coach. The NBA commissioner suspended him for one year. The player appealed the suspension. Holding: The Arbiter upheld the suspension for the remainder of the 97/98 season, but allowed Sprewell to start the next seasonso he shortened the suspension slightly.

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Rule: The only circumstances under which the penalty imposed by management maybe set aside are those where discrimination, unfairness, or capricious and arbitrary are provedthere must have been abuse of discretion. Sprewell v. Golden State Warriors p644 Facts: A professional basketball player sued his former team and professional basketball association challenging punishments imposed on him for his physical attack on team's head coach. Holding: The Court of Appeals held that: (1) arbitrator's award upholding punishments drew its essence from collective bargaining agreement (CBA); (2) arbitrator did not exceed scope of his authority in fashioning originative remedy; (3) California's public policy against race discrimination did not require vacatur of award; (4) player failed to state cause of action under statute guaranteeing equal rights to make and enforce contracts; (5) player failed to state cause of action for conspiracy to deprive of rights or privileges; (6) California's Unruh Civil Rights Act did not apply to player's punishments; (7) team and association did not violate player's common law right to fair procedure; (8) claims for intentional interference with contract and business relations were preempted by Labor Management Relations Act (LMRA) only to extent they were based upon alleged violations of collective bargaining agreement (CBA); and (9) claim under California's Unfair Practices Act was not preempted by LMRA to extent it was premised on alleged instigation of media campaign designed to portray player in false and negative light. c. Renegotiation of Contracts Arbitration Between NFL Management Council and John Hannah and Leon Gray p648 Facts: Two players staged a walkout because they wanted contract extensions. Each had two years left on their contracts. The NFL filed a grievance. A panel consisting of two owner representatives and two player representatives convened. Holding: 1) There were contracts between the players and the team. 2) The players violated their contracts. 3) The Patriots had n obligation to renegotiate or extend the existing contracts. Arbitration Between NBA (Chicago Bulls) and National Basketball Players Assoc. (Robert Love) p650 Facts: Loves agent alleged that the general manager of the Bulls promised to renegotiate Loves contract at the end of the season. The GM denied it. Issue: Whether the Chicago Bulls had an oral understanding to renegotiate its contract with Bob Love? Holding: The arbiter held that there had been no promise on the part of the GM. Rule: Ill. Stat. of Frauds: An oral modification of a contract which itself, is required to be in writing, is unenforceable. d. Mitigation of Damages Arbitration Between NFL Players Assoc. (Dante Pastorini) and NFL (Oakland Raiders) p651 Facts: There was a contract for the 80-83 seasons. His skill/performance was judged to be unsatisfactory and he was released. He demanded his salary for the next three years. The next week Pastorini signed with the Rams. The Raiders claimed that they were no longer liable for his contract. Then the Rams released him and he signed with the Eagles. Issue: Whether the Raiders is entitled to offset against its guaranteed salary obligations to Pastorini the amounts he received from other NFL clubs after his release by the Raiders in Sept. 1981? Holding: The concept of offset by way of mitigation is not applicable in this instance. The Raiders must pay. Rule: Where it is not a breach of contract (here there was no breach, the Raiders simply released him) or a case seeking damages, the concept of offset by way of mitigation is not applicable e. Bonus Provision Arbitrations Arbitration Between Major League Baseball Clubs (Cleveland Indians) and Major League Baseball Players Assoc. (James B. Bibby) p653 Facts: Bibby and the Cleveland Indians entered into a two year contract that provided for bonuses based on the number of games he started or number of innings pitched. He started the requisite 30 games and was entitled to a 10000 bonus at the end of the season. The Team did not pay. It argued that the end of the season language was ambiguous.

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Holding: The club was in default. Now Bibby is no longer bound and he is a free agent. Entertainment Law Grammer v. The Artists Agency Facts: Kelsey Grammer was dissatisfied with his representatives at the Artist Agency because they did not get him roles in films. He negotiated an interim deal where the Agency would continue to represent him for TV, but he could seek other representation for films. After one year, Grammer ended all ties with the Agency. The Agency sued for two million dollars in unpaid commissions on his television work. The arbitration panel decided for the Agency. The Actor appealed and sued talent agent, seeking to vacate arbitration award upholding settlement agreement under which actor was released from his contractual obligations with respect to theatrical motion pictures in exchange for extension of his obligations with respect to his television and commercial obligations. Grammer cited SAG Rule 16(g) contracts not complying with these regulations shall be void. The SAG had initially rejected the interim contract, but eventually accepted when the Artist Agency faxed over the Agreement to prove it was in Grammers best Interest. Holding: The Court of Appeals held that (1) arbitrator reasonably determined that variances between collective bargaining agreement (CBA) and settlement agreement did not void settlement agreement; (2) arbitrator reasonably determined that valid contract existed between actor and agency from time of signing of settlement agreement to time when renewal contracts went into effect; and (3) arbitrator reasonably determined that agency could be awarded commissions on consulting fees paid to actor while he worked on television series. Rule: Actor may not cite Rule Violations on the part of Agencies when the actor has previously waived the rule. Nick Marino v. WGA Facts: WGA told Marino that Coppola and Puzo would get sole writing credit for the Godfather II. Marino got a hearing before the PRB (Policy Review Board). Marino objected to the arbitration procedure. Holding: The Court of Appeals found that Marino had waived his right to object to the arbitration proceeding by his failure to protest the proceeding before arbiters were selected and performed their tasks. Rule: The Court of appeals outlined the three stages of WGA Arbitration process: 1) a committee conducts a hearing to decide disputes as to authenticity, identification, authorship or completeness of any literary material to be considered. 2) Three confidential arbiters read materials submitted by the writers and the film company to decide who is entitled to screen credit. Majority vote decides. 3) A Policy Review Board hears concerns by writers that there had been a dereliction of duty by the arbiters that they have misinterpreted, misapplied, or violated WGA policies. Marquez v. SAG Facts: Marquez alleged that SAG (Screen Actors Guild) breached its duty of fair representation under the National Labor Relations Act (NLRA) by negotiating and enforcing a flawed union security clause and by failing to truthfully notify her about her NLRA rights. Marques argued that SAG should have provided and notified her with a 30 day grace period following her new employment before she was required to pay her dues. Holding: The US Supreme Court disagreed, holding that SAG had not breached its duty of fair representation because (1) unions mere negotiation of union security clause tracking NLRA language does not breach duty of fair representation; (2) organizations negotiation of union security clause with language derived from NLRA section authorizing such a clause was not arbitrary; (3) organization did not act in bad faith by negotiating union security clause that tracked NLRA language; and (4) challenge to grace period provision of union security clause fell squarely within primary jurisdiction of National Labor Relations Board. Rule: The SAG does not have to notify actors of their specific rights. DGA v. Millennium TV Network Facts: The DGA (Directors Guild of America) sued Millennium TV Network when it failed to pay several directors for their work in a 1999 New Years Eve Telecast that was later cancelled. The DC found that because the directors performed work and labored on the telecast they were owed payment. Plaintiffs have also sued Defendants Frontier Insurance Company (Frontier) and NAC Reinsurance Corporation (NAC) for breach of payment bond that made

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the two companies liable as co-sureties to any and all persons, companies or corporations who performed work on the telecast. Holding: The DC granted DGAs motion for summary judgment and held NAC and Frontier liable. Metromedia v. Local 819 Facts: In 1973, Metromedia and Local 819 entered into a collective bargaining agreement covering three categories of employees-senior technicians, technical directors, and technicians. Article XX of both agreements provides for arbitration of disputes. Metromedia, Inc. (Metromedia) seeks to vacate an arbitration award. Plaintiff alleges that the arbitrator exceeded his powers by ignoring bargaining history and the practice of the parties under the collective bargaining agreement, by modifying the agreement, and by substituting his judgment for the business judgment of plaintiff. Walter Anderson, a member of Local 819 and a 25-year employee at WTTG-TV, was demoted from technical director to technician for disciplinary reasons. The Union takes the position, and has supported it with some authorities, that when the contract does not retain the right to demote, the Employer contracts away such right as such an action affects the seniority rights of the employee involved and other employees in the same category. Holding: The parties bargained for the arbitrator's construction, and because his award clearly drew its essence from the agreement, it must be enforced. The Court denies plaintiff's motion for summary judgment and grants defendant's motion for summary judgment. Rule: The question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his. It is the award rather than the specific reasoning that is reviewed.

Copyrights Copyrights are available to original works of authorship that are fixed in tangible form.

I.

Protectable Subject Matter ( 102) Requirements: a. Originality A work of authorship must be original to the person claiming protection. Copyright does not protect mere facts. i. The author must not have copied from another ii. Must demonstrate a minimal degree of creativity.
b.

Fixation 102(a) A work must be fixed in any tangible medium of expression. Doesnt matter how as long, as long as its in stable form that is readable by man or machine. Live transmissions are protected if they are simultaneously fixed (on videotape, for example).

Facts and Ideas NOT protected 102 (b) Protects the expression of an idea, but not the idea itself. Once work is revealed, idea in public domain. Creator controls only the form in which the idea is expressed. i. Merger doctrine in some cases there may be so few ways to express an idea that the mode of expression merges w/ the idea. Often found in utilitarian objects and games rules, etc. ii. Blank form doctrine a form that conveys no information and serves only to provide blank space for recording information contains no expression or section of information that could possibly warrant copyright protection Creativity is a way to escape both blank form and merger
c.

II.
a.

Ownership Typically, copyright vests initially in the author, unless: III. Exclusive Rights granted to owner by 106 Copyright owner may exclude others from doing any of the following w/o his permission:

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1.
2. 3.

To reproduce by making copies or phonorecords Such copies (and derivative works) must be actual reproductions, not merely similar. 114. b. To prepare derivative works only copyright owner may make a transformed version of the original work (or license rights to do so to others) c. To distribute copies or phonorecords of work includes sales, rental, lease, or lending. i. Limited by the First Sale Doctrine ( 109) Once a particular copy or phonorecord of a work has been sold, the buyer can dispose of it as he wishes; does not apply to licenses. d. To perform the work under certain circumstances i. Traditional public performance right Only the copyright owner may perform the protected work publicly. Public transmissions are also considered public performances. ii. This right does not extend to sound recordings. The owner of a phonorecord may display or play it publicly w/o violating the rights of the owner of the copyright to the sound recording but still must get permission from owner of copyright to the musical composition underlying the sound recording. 114. e. To display the work The showing of a copy of the work either directly or by means of a film, slide, television image, or any other device or process, etc. This right does not extend to sound recordings. Owner of a copy may display it to people present at the place were the copy is. 109(b). Exemptions for charitable, religious, educational, and other non-profit uses. 110.
a.

IV.
a.

Fair Use Four Factor Test found in 107 i. The purpose and character of the use Private, non-commercial use is more likely fair use than commercial use. Not whether the sole motivation is monetary gain, but whether user stands to profit from exploiting copyright without paying for it. ii. The nature of the copyrighted work Fact-based works more susceptible to fair use than works of fiction. iii. The amount and substantiality of the portion used The less thats copied w/o permission, the more likely its fair use. Need not be a % analysis; taking the heart of work will not be fair use (unless its a parody). iv. The market effect on the copyrighted work If market value is destroyed by fulfilling demand, etc. then no fair use. Seemingly Most important factor. . COPYRIGHT (SPORTS)

NBA v. Motorola: -Athletic events are not copyrightable in themselves since they have no underlying script -The broadcast of athletic events can be copyrighted since the cameramen and director contribute creative labor to the telecasts Morris Communications v. PGA Tour: -The PGA Tour has a property right (though not copyright) in the compilation of scores, but that property right disappears when the underlying information is in the public domain -The PGA Tour controls the right of access to the scoring information and can place restrictions on those attending the private event, thus giving them a protectable property right in that information (not copyright) NFL v. McBee & Brunos: -If intended unauthorized use of copyright material is for commercial gain, likelihood of future harm may be presumed -Although signal of black-out football game was received by satellite dish, there was no public performance in violation of Copyright Act, where only four people watched game

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NFL v. TVRADIONOW Corp: -When an allegedly infringing act occurring without the United States is publicly performed within the United States, the Copyrighted Act is implicated and a district court possesses jurisdiction -Streaming copyrighted programs over the internet violates the copyright owners right to perform the works publicly and to authorize others to do so. -Contributory Infringement: Helping others make copyrighted programs available to others over the internet with knowledge that third parties could and would further infringe owners copyrights COPYRIGHT (ENTERTAINMENT) LAW OF IDEAS Blaustein v. Burton: -That a product of the mind has cost its producer money and labor and has a value for which others are willing to pay does not insure it protection as private property, and an idea, after voluntary communication to others, is free to common use. -There is no individual property in abstract ideas Buchwald v. Paramount: -In cases involving infringement, it has been held that an inference of copying may arise when there is proof of access to the material with a showing of substantial similarity -Where there is strong evidence of access, less proof of similarity may suffice. Anderson v. Sylvester Stallone: -Two part test for determining whether an allegedly infringing work is substantially similar to the copyrighted work. -The first is the extrinsic test, which compares the plot, theme, dialogue, mood, setting, pace, sequence of events, and characters of the two works -The extrinsic prong has been expanded to include specific plot sequences, highly delineated characters and dialogue -The second prong is the intrinsic test. The plaintiff must show that there is substantial similarity of expression between the two works in question. -The intrinsic test is subjective and is based on the response of the audience to the look and feel of the two works. Mann v. Columbia: -Courts will look at substantial similarities between a plaintiffs submitted outline to a motion picture corp. and a the actual motion picture in terms of form and manner of expression -Even if plaintiffs ideas were used, the use does not necessarily imply that the outline was protectable property. SCOPE OF COPYRIGHT PROTECTION Bleistein v. Donaldson: -Printing and engraving are not excluded from the useful arts, which congress is empowered by the constitution to promote by copyright laws -Pictoral illustrations are none the less within the protection of the copyright law because they are drawn from real life. Gracen v. Bradford Exchange: -Artistic originality is not the same thing as the legal concept of originality in the Copyright Act -A derivative work must be substantially different from the underlying work to be copyrightable -A picture created by superimposing one copyrighted photographic image on another is not original for copyright purposes

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Nichols v. Universal: -Property of playwright by virtue of copyright is not extended to ideas Sheldon v. MGM: -Fair use may permit copying of ideas or theme of copyrighted work, but not its expression -Unconscious plagiarism is as actionable as deliberate plagiarism Willis v. HBO: -A stock character or basic character type is not entitled to copyright protection -No character infringement claim can succeed unless plaintiffs original conception sufficiently developed the character, and defendants have copied this development and not merely the broader outlines Goodman v. Lee: -A joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. C&C Entertainment v. Rios-Sanchez: -A non-exclusive license may arise by implication where the creator of a work, at a defendants request, hands it over, intending that the defendant copy and distribute it; oral non-exclusive copyright licenses are enforceable -A co-authorship claimant bears the burden of establishing that each of the putative coauthors (1) made independently copyright table contribution to the work, and (2) fully intended to be co-authors Morrill v. Smashing Pumpkins: -Rock music performer was joint author of videotape of performance by his original band, for copyright purposes, together with producer and editor -Musical content was of equal importance with visual elements Geisel v. Poynter: -Owner of copyright upon entire contents of a magazine may validly assign copyright upon single picture or article in magazine -Moral rights (not part of American Law) provide the author with the right to object to any distortion, mutilation or alteration of his work even after transfer of copyright. -Generally, copyrights and all other rights pass with absolute and unconditional sale Newton v. Diamond: -When a copyrighted song is recorded on a phonerecord, there are separate copyrights: one in the musical composition, and the other in the sound recording -A taking from a copyrighted work is de minimis if the average audience would not recognize the misappropriation Platinum Records v. Lucasfilm: -A contract entered with owners of copyrighted songs for use in a motion picture and soundtrack can be sufficiently broad to encompass video disks and video cassettes if the agreement specifically gives the motion picture the right to exhibit, exploit, market and perform the motion picture perpetually throughout the world by any means or methods now or hereafter known. -It is immaterial whether copyright owner anticipated all potential future developments of the above clause WORKS FOR HIRE Moran v. London: -Performance of announcer in dog food commercial was within scope of his employment and constituted a work for hire for purposes of announcers action alleging infringement, wherein he claimed to be beneficial owner. Agee v. Paramount:

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-Commercial entities may not reproduce sound recordings on sound tracks of audiovisual works, whether or not reproduction involves synchronization -Merely transmitting sound recording to public airways does not constitute distribution in violation of copyright holders distribution rights. Aalmuhammed v. Spike Lee: -A joint work requires each author to make an independently copyrightable contribution to the disputed work -Authorship is a statutory requirement for finding that a contributor has rights in a joint work, and requires more than the making of a valuable and copyrightable contribution -Whether contributor may be deemed coauthor of a joint work will depend on criteria such as whether contributor exercised control over the work, whether putative coauthors made objective manifestations of shared intent to be coauthors, and whether audience appeal of the work turns on both contributions, such that share of each in its success cannot be appraised Quintanilla v. Texas Television: -Factors relevant in deciding whether hired party is employee versus independent contractor for work-for-hire copyright purposes are: the hiring partys right to control manner and means by which product is accomplished, skill required, source of instrumentalities and tools, location of work, duration of relationship between parties, whether hiring party has right to assign additional projects to hired party, extent of hired partys discretion over when and how long to work, method of payment, hired partys role in hiring and paying assistants, whether work is part of regular business of hiring party, whether hiring party is in business, provision of employee benefits, tax treatment (no one factor is determinative) -Co-owner of copyright cannot be liable to another co-owner for infringement of copyright INFRINGEMENT Kroft v. McDonalds: -To determine copyright infringement, there must be ownership of the copyright and access to the copyrighted work. Additionally, there must be substantial similarity not only of the general ideas but of the expressions of those ideas as well MGM v. American Honda: -Plaintiff who holds copyrights in film series acquires copyright protection as well for expression of any significant characters portrayed therein -Situations, incidents, or events that naturally flow from common theme, or setting or basic plot premises are scenesa-faire -To demonstrate access to copyrighted work, there must be reasonable possibility to view plaintiffs work, not just bare possibility -The more popular the copyrighted work (in terms of audience and geographic scope), the stronger the presumption of access by a defendant -Once copyright holder has shown likelihood of success on merits based on access and substantial similarity, irreparable injury is presumed, warranting preliminary injunction Los Angeles News Service v. Reuters: -Copyright Act does not apply extraterritorially -For the Copyright Act to apply, at least one alleged infringement must be completed entirely within the United States -A copyright owner may recover damages for international distribution of the works based on the theory that an act of direct infringement, in the form of a reproduction of the works, took place in the United States Bright Tunes v. Harrisongs: -Inasmuch as composer of song had access to an earlier successful song, and the songs were the same with different words, copyright was infringed even though composer did not deliberately use the music of the original song

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Baxter v. MCA: -Absent evidence of access to allegedly infringed copyrighted work, striking similarity between two works may give rise to permissible inference of copying Three Boys Music v. Bolton: -Circumstantial evidence of reasonable access to a copyrighted work (for infringement purposes) is proven in one of two ways: 1) a particular chain of events is established between the plaintiffs work and the defendants access to that work, such as through dealings with a publisher or record company, or 2) the plaintiffs work has been widely disseminated -Under inverse ratio rule a court requires a lower standard of proof of substantial similarity on a copyright infringement claim when a high degree of access is shown FAIR USE SunTrust v. Houghton Mifflin: -Copyright does not immunize work from comment and criticism -A work is a parody for purposes of fair use analysis, if its aim is to comment upon or critize copyrighted work by appropriating elements of original in creating new artistic, as opposed to scholarly or journalistic work -Fair use does not necessarily become infringing at the moment it does more than simply conjure up another work; rather, once enough has been taken to assure identification, how much more is reasonable will depend on (1) extent to which works overriding purpose and character is to parody original or, in contrast, (2) likelihood that parody may serve as market substitute for the original. Campbell v. Acuff-Rose: -For purposes of determining whether parody of copyrighted work is fair use, inquiry focuses on whether new work merely supersedes object of original creation or whether and to what extent it is transformative and alters original work with new expression, meaning or message -The more transformative the new work is, the less significant are other factors, like commercialism, that might weigh against fair use -To be fair use, the parodic character of the work must be reasonably perceived Ringgold v. BET: -Copying that has occurred to such trivial extent as to fall below quantitative threshold of substantial similarity may be considered de minimis in copyright context -Concept of de minimis is inappropriate as component of fair use analysis, in copyright infringement case Kulik Photography v. Cochran: -Attorneys use of copyrighted photograph in nationally televised criminal trial was fair use. A&M Records v. Napster: -Direct economic benefit is not required to demonstrate a commercial use; repeated and exploitative copying of copyrighted works, even if the copies are not offered for sale, may constitute a commercial use -Uploading and downloading of digital audio files containing copyrighted music is not fair use because such use is not transformative, the original works were creative in nature, they were copied in their entirety, and their use could impair the market for the copyrighted work, or the future market if the owner decides to enter into the digital music download market. TRADEMARKS
a.

Likelihood of Confusion Test

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i. Strength of Ps TM The stronger the mark, the more likely that consumers seeing the allegedly

similar mark will be confused

ii. Degree of similarity between Ps and Ds mark

iii. iv.

v. vi. vii. viii.

1. Similarity of Appearance overall appearance 2. Similarity of Sound sounds of words, for example S.O. and Esso 3. Similarity of Meaning Mental image evoked by TM may overpower any differences between them (e.g. Cyclone vs. Tornado; Cat vs. Gato) Proximity of goods or services Goods likely to be sold in the same or same kind of store/area Likelihood that P will bridge the gap How likely P is to begin selling the stuff that D is trying to sell. Even if no immediate plans, the court might still consider Ps right to reserve that option in the future. Actual confusion Not necessary, but highly persuasive. Ds good faith in adopting the TM Did D intentionally copy just to cash in on Ps goodwill? Quality of Ds product or services / channels If use their s in same or related services, then there is a greater likelihood of confusion. Sophistication of the buyers The more sophisticated, and the more costly the services, the more careful and exacting the purchasers will be, and less likely to be confused.

ix. The Nominative Use Test:

1. The product/service in question must be one not readily identifiable without the use of the TM 2. Only so much of the TM may be used as is reasonably necessary to ID the good/service 3. The user must do nothing that would suggest sponsorship or endorsement. A cause of action for the infringement (under 15 U.S.C.A. 1114) of a registered trademark exists where a person uses: 1) Any reproduction, counterfeit, copy or colorable imitation of a mark; 2) Without the registrants consent; 3) In commerce; 4) In connection with the sale, offering for sale, distribution or advertising of any goods; 5) Where such use is likely to cause confusion, or to cause mistake or to deceive TRADEMARKS (SPORTS) Indianapolis Colts v. Metropolitan Baltimore Football Club: -Although in principle a trademark return to public domain when it is abandoned and it is appropriable anew; in practice, because subsequent use of abandoned mark may well evoke continuing association with prior use, those who make subsequent use may be required to take reasonable precautions to prevent confusion, especially where former owner of abandoned mark continues to market same product or service under similar name Boston Professional Hockey v. Dallas Cap & Emblem: -A cause of action for the infringement of a registered trademark exists where a person uses any reproduction, counterfeit, copy or colorable imitation of a mark without the registrants consent in commerce in connection with the sale, offering for sale, distribution or advertising of any goods where such use is likely to cause confusion, or to cause mistake or to deceive. Board of Governors of University of North Carolina v. Helpingstine: -Fact that the public could no longer point to single source of the origin of goods bearing universitys trademarks did not establish that university had abandoned its marks NFL Properties v. New Jersey Giants:

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-In order to be confused as to the source or sponsorship of goods or trademark infringement, a consumer need not believe that the plaintiff actually produced defendants merchandise and placed it in the market, rather, a consumers belief that a plaintiff sponsored or otherwise approved the use of the mark satisfies the confusion requirement. -In establishing the existence of a likelihood of confusion for the purpose of service mark or trademark infringement and unfair competition, there is no requirement that incidents of actual confusion be shown and such evidence is unnecessary where other factors strongly suggest the likelihood of confusion. NHL v. Pepsi-Cola Canada: -No infringement by defendants in their ambush marketing since plaintiffs sole product is hockey games while that of defendants is soft drinks. Thus, there is no possibility that the marketing of a contest could have misled public into believing the defendants product was that of the plaintiff TORTS INJURY TO SPECTATORS Spectators will not recover for injuries that result from ordinary and foreseeable risks inherent to a particular sport Spectators do not assume the risk of an arena/stadium operators failure to meet his duty of care Owners or operators are liable for conditions which cause harm to spectators if they knew (or should have known) condition existed which posed unreasonable risk

Thurmond v. Prince William Professional Baseball Club, Inc (p.863) Facts > Fan at a minor league baseball game gets hit in the face with a foul ball Fan alleged negligence on part of stadium owners o Not enough warnings / protection from foul balls Rule > Assumption of Risk Doctrine > A persons voluntary assumption of the risk of injury from a known danger operates as a complete bar to recovery for a defendants alleged negligence in causing that injury Application > A person attending a baseball game (even for a short period of time) understands the nature and extent of a known danger like being hit by a baseball INJURY TO ATHLETES Hackbart v. Cincinnati Bengals (pgs 871/873) Facts > After an interception in a football game, player who is kneeling on the field is struck in the back by opposing player No intent to harm / acted out of frustration Injured player did not complain to coaches or other players Subsequently developed back problems and released by team Rule > Principles of law governing the infliction of injuries must not be disregarded simply because an injury is inflicted during a violent sport Standard > Recklessness choice or adoption of a course of action either with knowledge of the danger or with knowledge of facts which would disclose this danger to a reasonable man Application > Recklessness is distinguished from negligence in that the act is intended by the actor Striking the player on his knees with his back turned was an intentional act which a reasonable man should realize the danger of serious injury Departure from Assumption of Risk (to a small degree) for football Mark v. Moser (p.877) Facts > Plaintiff suffers serious injuries in a triathlon when competitor cuts off her bike with his front tire and they crash Rule > Voluntary participants in sports activities assume the inherent and foreseeable dangers of the activity and cannot recover for injury unless it can be established that the other participant either intentionally caused injury or engaged in

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conduct so reckless as to be totally outside the range of activity involved in the sport Application > cause of action between co-participants when players step outside of their roles as fellow competitors and recklessly or intentionally inflict harm No liability when injury causing action amounts to a tactical move that is reasonably foreseeable in the sport undertaken o Like in this case > trying to cut off other cyclist to gain advantage foreseeable LIABILITY OF EDUCATIONAL INSTITUTIONS HIGH SCHOOL Legal Duty of Care High school district not liable for injury to an apparently healthy athlete resulting from latent medical condition > Kerby v Elk Grove Union High To recover from school district > must prove tortuous conduct o Theory of negligence traditionally relied on o Duty owed to athlete by school district (in exercising reasonable care to protect student-athletes from injury) Giving adequate instruction in the activity Supplying proper equipment Making reasonable selection or matching of participants Providing non-negligent supervision Taking proper post-injury procedures to protect against aggravation of injury Policy > courts balance responsibility that emanates from custodial relationship between school and students with assumption of risk of injury on part of students

Kahn v. East Side Union High School District (p.898) Facts > Student participating in a swim meet broke her neck when she dove into shallow end of pool Alleged injury occurred because of failure by her coach to provide her with proper instruction on how to dive in shallow end Rule > In order to support a cause of action it must be alleged and proved that the instructor acted with intent to cause a students injury or that the instructor acted recklessly in the sense that his conduct was totally outside the range of the ordinary activity involved in teaching or coaching the sport Duty > Coach or ports instructor owes a duty to a student not to increase the risks inherent in the learning process undertaken by the student Court applies Totality of the Circumstances standard Application > Risks are inherent in every sport, but coach has a duty not to increase risk Coach reckless in this case o No instruction at all on shallow diving o Mortal fear to dive by student > coach told her she wouldnt have to then pressured her right before the meet > would have dropped her from team Policy > Reckless standard appropriate to avoid chilling of coaches role in pushing athletes Sovereign Immunity Prince v. Louisville Municipal District (p.905) Facts > student who suffered a heatstroke during football practice sued the school district for negligence by the football coaches Rule > A government official will be immune from liability when the act being performed is discretionary as opposed to ministerial

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Discretionary duties are those that call for the exercise of the public officials judgment or discretion Ministerial duties is an act that is absolute and involving only the execution of a specific duty arising out of fixed facts Application > Coaches were exercising ordinary discretion in their supervision of practice The Validity of Liability Waivers Determining the validity of liability waivers requires judicial reconciliation of a fundamental tension between contract and tort law

Wagenblast v. Odessa School District No. 105-157-166J (p. 911) Facts > Not many looks like school required students to sign a waiver before participating in school sports Rule > Exculpatory agreement releasing school district from negligence is invalid if it violates public policy In determining whether exculpatory agreement violates public policy, court considers whether certain characteristics are present in the agreement > more of these characteristics in the agreement, the likelier it violates public policy and is invalid o Agreement concerns an endeavor of a type generally thought suitable for public regulation o Party seeking exculpation is engaged in performing a service of great importance to the public (often a matter of necessity for some of the public) o Party holds itself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards o Party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the service because of the nature of the service/economic setting of the transaction o Party confronts the public with a standard adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence o Members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents Application > These waivers essentially act as an expressed assumption of risk but if release is against public policy per the characteristics, its invalid Policy > There are instances where public policy reasons for preserving an obligation of care owed by one person to another outweigh the traditional regard for the freedom to contract Sharon vs. City of Newton (p. 914) Facts > Cheerleader broke her arm after she and her dad signed a release Release provided for option to purchase additional insurance through school Rule > If release is unambiguous, not a contract of adhesion, and does not violate public policy it is valid Policy > Protecting volunteer coaches and managers from liability, as well owners of land who permit their use for recreational purposes, further public goals of encouraging youth to participate in sports COLLEGE OR UNIVERSITY Kleinknecht v. Gettysburg College (p. 920) Facts > lacrosse player had cardiac arrest and died during practice No trainers present / coaches didnt know cpr No communication device on field Nearest training room 250 yards away No history of medical problems Rule > A special relationship exists between a college and its intercollegiate athletes which imposes on the college a duty of reasonable care Not required to guard against every possible risk, but must take reasonable steps to guard against hazards that

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are generally foreseeable Duty applies while student taking part in the sport Application > Foreseeable that an irreparable injury can occur to a student athlete if emergency measures inadequate Policy > University has a duty to provide a safe environment to participate in activity student was recruited to school for Orr v. BYU (p.925) Facts > college football player hurt his back during practice Despite orders from coach, did not see trainers for treatment Continued to play after told by coaches to leave the game if pain increased After tests revealed 3 herniated discs, player was referred to neurosurgeon who performed surgery Player left after the season to play professionally in Finland Alleged negligence in medical care Rule > The relationship between a college and its student athlete is not custodial in nature Nature of the relationship is more contractual Liability possible for negligent medical service Application > Failure by student to seek medical treatment in timely manner > not failure of school to provide proper medical care Searles v. Trustees of St. Joe's College (p.927) Facts > Scholarship basketball player began experiencing knee pain Coach kept playing him despite knowledge of condition Rule > College has a legal duty to exercise reasonable care towards its students Duty encompasses the duty of college coaches to exercise reasonable care for the health and safety of student athletes Application > Playing a student athlete with a degenerative medical condition breaches the duty of a school to exercise reasonable care ATHLETES' PRIVACY, REPUTATION, AND PUBLICITY RIGHTS ATHLETE'S RIGHT OF PUBLICITY Elements of Claim Newcombe v. Adolf Coors (p.1034) Facts > Retired ballplayers likeness used in beer ad Player is recovered alcoholic Rule > Elements of Commercial Misappropriation (common law) 1. Defendants use of plaintiffs identity; 2. Appropriation of plaintiffs name or likeness to defendants advantage, commercially or otherwise; 3. Lack of consent; and 4. Resulting injury Application > the tricky prong is determining likeness (2nd) A photograph must be readily identifiable as the plaintiff o When one views the photo with the naked eye can reasonably determine the person depicted in the photo is the same person complaining of the unauthorized use Likeness is a visual image of a person other than a photo o Same readily identifiable standard as photo Case also cites CA civil code > (1) a knowing use; (2) for purposes of advertising; and (3) a direct connection between the use and the commercial purpose

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Hillerich & Bradsby Co. v. Christian Bros., Inc. (p. 1037) Facts > Company that had exclusive rights to use hockey player Mark Messiers name on their hockey equipment sues another company using his name on their blade Rule > Lanham Act (sec. 43(a) In order to succed in a claim that defendant is misleading the public o Prove what factual message or claim is conveyed to the ordinary consumer; and o Prove the message is likely to mislead the ordinary consumer Application > By putting Messiers name on their blades, defendant company is misleading the public in that it is implying Mark Messier endorses their product 1st Amendment Limitations There is an inherent tension between the protection of an individuals right to control the use of his likeness and the constitutional guarantee of free dissemination of ideas, images, and newsworthy matter in whatever form it takes Medias right to report newsworthy events does not permit the unauthorized broadcast of a performers entire act, threatening economic harm o Cannonball guy case > Zacchini v. Scripps Howard Broadcasting

Doe a/k/a Tony Twist v. TCI Cablevision (p.1047) Facts > Hockey player called Tony Twist was known by fans as an enforcer or goon The writer of the comic book Spawn created a character called Tony Twist that resembled the players attributes as a tough guy Writer answered fan mail that it was based on Twist and many characters based on hockey players Marketed the comic and other products to hockey fans o Spawn night at minor league hockey game > gave away Spawn products Rule > Elements of Right of Publicity action Defendant used plaintiffs name as a symbol of his identity; Without consent; and With the intent to obtain a commercial advantage Application > the threshold legal question > whether the use of a persons name and identity is expressive (fully protected) or commercial (generally not protected) Different Tests o Relatedness test (restatement) > use of name and identity actionable only when the use is solely for commercial purposes and is otherwise unrelated to that person o Transformative test (CA) > use of celebrity status not actionable even if sole use is commercial if identity transformed or fictionalized o Predominant Use test (This case/MO) > determine if use is predominantly commercial or expressive to determine whether it is protected Policy > to prevent unjust enrichment by the theft of goodwill ETW Corp. v. Jireh Publishing, Inc (p.1050) Facts > Tiger Woods sued an artist for false endorsement under the Lanham Act after he created a print using Woods and other past winners of the Masters golf tournament Rule > Lanham Act provides a right of action to persons engaged in interstate and foreign commerce, against deceptive and misleading use of words, names, symbols, or devices, or any combination thereof, which have been adopted by a merchant to identify his goods and distinguish them from those manufactured by others 1st Amendment defense > Speech is protected even though it is sold for profit when it is expressive Lanham Act should be applied to artistic works only where the public interest in avoiding confusion outweighs the public interest in free expression Application > The presence of Woods image has artistic relevance to the work and it does not explicitly mislead as to

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the source of the work ENTERTAINMENT CASES DEFAMATION Morrison v. NBC 19 N.Y. 2d 453 Facts > Quiz show case Contestant on rigged tv game show alleges defamation because his reputation was ruined by the scandal Rule > A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Unlike most torts, defamation is defined in terms of the injury, damage to reputation, and not in terms of the manner in which the injury is accomplished. Communication > the fact that one person has brought an idea to the perception of another Seelig v. Infinity Broadcasting 97 Cal.App 4th 798 Facts > A contestant on a reality show to marry a millionaire sued a radio station for defamation when a couple of morning djs called her a local loser and a chicken butt, and falsely claimed her ex-husband said she was a big skank. Rule > There can be no recovery for defamation without a falsehood Plaintiff must present evidence of a statement of fact that is provably false o Statements do not imply a provably false factual assertion if they cannot reasonably be interpreted as stating actual facts about an individual o Rhetorical hyperbole / vigorous epithets / lusty expressions > all been accorded constitutional protection Totality of the Circumstances used to ascertain whether statements in question are provably false factual assertions o look at the language to see if understood in a defamatory sense o look at context in which statement was made nature of communication and audience Application > chicken butt and local loser are statements of the speakers subjective judgment > rhetorical hyperbole > also too vague to be proven true or false (so is big skank) Context of morning radio show > no listener could reasonably interpret these statements to be of actual fact WWF v. Bozell 142 F. Supp.2d 514 Facts > Wrestling federation brought defamation suit against media monitor group who publicly blamed WWF for deaths of four children who died from wrestling moves Rule > 1st Amendment does not protect statements that are false and defamatory A public figure may hold a speaker liable for damage to reputation caused by publication of a defamatory falsehood if statement was made with knowledge that it was false or with reckless disregard of whether it was false or not Defamation claims based on commercial speech are not subject to the same rigorous constitutional scrutiny as other kinds of speech Factors to consider in defamation cases o Whether statements are commercial or noncommercial o Whether statements were false o Whether statements were defamatory o Whether statements were made with malice Defamatory Statement > one that exposes an individual/entity to public hatred, shame, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or induces an evil opinion of one in the minds of right-thinking persons

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Factors to consider when determining whether speech is commercial o Whether the communication is an advertisement o Whether the communication refers to a specific product or service o Whether the speaker has an economic motivation for the speech Proving Malice in Defamation > must prove the defendant had a subjective awareness of either falsity or probable falsity of the defamatory statement, or acted in reckless disregard of its truth or falsity Application > Media groups speech was commercial because it referred to specific products (wrestling) and used it in its ads and for fundraising Statements were defamatory and false o Wrestling program aired hours after deaths o Statements that companies cancelled their advertising for WWF were false o Statements accused WWF of criminal irresponsibility Statements were made with actual malice o Attributed death of children to shows even though happened before the show aired o Made false statements Trademark dilution / Lanham Act > whole other set of rules if anyone is inclined > 142 F. Supp.2d 514 FALSE IMPRISONMENT Campoverde v. Sony 2002 WL 31163804 Facts > client and attorney agree to appear on the Ricki Lake Show Had an agreement beforehand Upon arrival, were intimidated and coerced into signing new contract Were not allowed to leave studio after many requests Rule > To establish a claim for False Imprisonment, plaintiff must show: Defendants intended to confine them; Plaintiffs were conscious of the confinement; Plaintiffs did not consent to the confinement; and The confinement was not otherwise privileged Application > plaintiffs need not show that they physically tried to leave Not required to incur the risk of personal violence by resisting until it is actually used Defendant exercises requisite complete dominion over plaintiff when plaintiff submits to an apprehension of force reasonably understood from the defendants conduct INVASION OF PRIVACY Costanza v. Seinfeld 181 Misc.2d 562 Facts > Guy who claims George Costanza was based on him sues for invasion of privacy and being placed in a false light Rule > Written consent is required to use a persons name or likeness for trade or advertising Works of fiction or satire do not fall within the narrow scope of advertising or trade o The sort of commercial exploitation to be prohibited is solicitation of patronage Miller v. NBC 187 Cal.App. 3d 1463 Facts > Wife of deceased sued a tv station for following paramedics into her home and filming the death of her husband which they aired live on the news Rule > Trespass is an unauthorized entry onto the land of another > intentional tort Regardless of actors motivation > even if entered in good faith under mistaken belief Liable for all direct consequences of any conduct engaged in while trespassing o Including emotional distress

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Right of Privacy is the right to live ones life in seclusion, without being subjected to unwarranted and undesired publicity o Right is not absolute o Is subject to the limitation that the intrusion would be highly offensive to a reasonable person o Unintended or mistaken foray into territory of another does not give rise to liability Application > Camera crew entering a home without consent to film a spouses death is considered highly offensive to a reasonable person and gives rise to liability NEGLIGENCE Zamora v. CBS 480 F.Supp. 199 Facts > Parents of a minor who killed someone sued the 3 major networks on theory that tv violence caused him to become addicted and desensitized to violence and cause him to kill Rule > (Florida) negligence unconnected with physical injury will not provide basis for mental or emotional injuries Television is press > freedom guaranteed by 1st amendment Application > claim barred by 1st amendment Bowes v. Cincinnati Riverfront Coliseum 465 N.E. 2d 904 Facts > Estate of deceased sued city, coliseum, and others for wrongful death after tragedy at the entrance of a Who concert Long delays in opening stadium doors Festival seating first come, first serve Rule > judicially created doctrine of municipal immunity abolished Municipal corporations subject to suit for damages suffer by individuals injured by the negligence or wrongful acts or omissions of their agents or employees o Regardless of whether agents engaged in proprietary or government functions o As far as municipal liability is concerned > liability is the rule, immunity is the exception Crown v. Kiedas 1992 WL 884644 Facts > College student sues Red Hot Chili Peppers manager after they sexually assaulted her after a concert on campus Rule > generally, a person owes no duty to control the conduct of 3rd persons in order to prevent harm to another, unless: A special relationship exists between the actor and the 3rd person which imposes a duty on the actor to control the 3rd persons conduct o Parent/child o Master/servant Application > No special relationship exists between a manager and his band to impose a duty on him for the acts of the band

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REGULATING AGENTS I. ENTERTAINMENT LAW 1. Friedkin v. Walker, 90 Misc.2d 680 Rule: Agents are considered employment agencies and are therefore subject to state licensing requirements. Application: Plaintiff is a well-known Director. Defendant is a well-known but unlicensed agent in the business of managing, directing and promoting lectures. The parties executed a contract on June 13, 1972 whereby plaintiff agreed to employ defendant as his sole and exclusive agent for a stated purpose or negotiating and securing engagements and to book, manage and arrange all his lectures, talks and addresses. New York law requires that employment agencies be licensed and the court declared that agents were de facto employment agencies. As a result, the court ordered the agent to return all commissions earned pursuant to the contract since the defendant was not licensed. 2. Wachs v. Curry, 13 Cal.App.4th 616 Rule: State law, which requires that talent agencies that procure employment for artists in entertainment fields, such as motion pictures, television, and radio, be licensed as an employment agency, is constitutional. Application: Talent agency that provided personal management services to artists and entertainers brought a declaratory relief action challenging the validity of the licensing provisions of the Talent Agencies Act, which requires persons who procure employment for artists in entertainment fields, such as motion pictures, television, and radio, to be licensed as talent agents by the labor commissioner. The agency argued that the law was unconstitutionally vague. The court ruled that the phrase occupation of procuring [employment] is not so patently vague and so wholly devoid of objective meaning that it provides no standard at all. 3. Buchwald v. Superior Court, 254 Cal.App.2d 347 Rule: California Law, the Artists' Managers Act, required artists Managers to be licensed. Since the clear object of the Act is to prevent improper persons from becoming artists' managers and to regulate such activity for the protection of the public, a contract between an unlicensed artists' manager and an artist is void. Application: Unlicensed manager of the group Jefferson Airplane argued that, amongst other things, that the contract between the parties made clear that while he managed the group, that he was not a manager as defined by the statute. The statute is remedial in nature, and therefore, substance trumps form. This contract is no subterfuge to evade the General Business Law. An employment agency could not circumvent the statute by putting its contract to procure employment for an artist in the form of an agreement for management. The court is free to search out illegality lying behind the form in which a transaction has been cast for the purpose of concealing such illegality. 4. Ahern v. Scholz, 85 F.3d 774

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Facts: Sholtz is songwriter of band Boston. Ahern was former manager of Boston. There was a contract from Bostons first 2 albums, with CBS, which paid royalties to Boston. Boston then switched to MCA and switched managers, which resulted in a contract that paid royalties to Bostons former manager, Ahern. After a contractual disagreement during the production of the 3rd album, CBS sued Boston for breach and won. Boston switched to MCA and CBS stopped paying Boston their royalties. Bostons third album was successful and instead of paying Ahern his contractual royalties, Boston added the cost of the previous litigation to the cost of recording: this accounting led to a albums bottom line to be in the red, and therefore negating any royalty that was due Ahern. Shultz argued that 1) he did not breach because the album not profitable, therefore Ahern did not rate any royalties, and 2) in the alternative, that he only breached the second contract because Ahern breached the first one by stopping the royalty payments due Boston from the 1st two albums. Issue 1: Court ruled that a breach by Ahern on the 1st contract did not excuse Shultzs subsequent breach of the 2nd, independent, contract. Issue 2: Court ruled that it was improper for Shultz to include the litigation expense from the 1st lawsuit as a recording expense when accounting for the profits of the 3rd album. There was expert testimony that stipulated that this was not a common industry practice. 5. Croce v. Kurnit, 565 F.Supp. 884 Rule: Because of the uncertainty involved in the music business and the high risk of failure of new performers, contracts which significantly favor the production company are not unfair. Whether a contract or any clause of the contract is unconscionable is a matter for the court to decide against the background of the contract's commercial setting, purpose, and effect. Application: Jim Croces widow claimed that the contract that her and her late husband entered was unconscionable, in that they received little benefit due to their weak negotiating position and naivet. The court ruled that although Croce was in a weak negotiating position, the context surrounding a contract of this nature (high risk of artist not being profitable) allowed for a contract that favorable to the recording company. II. SPORTS LAW STANDARD OF CARE 1. Zinn v. Parrish, 644 F.2d 360 Rule: A contract to provide a good faith effort to secure the best terms for the player and off-season employment for the player is satisfied when the agents effort to complete these tasks were done with good faith regardless of the actual outcome. A good faith attempt to secure off-season employment does not require that off-season employment actually be attained. Application: Zinn was a sports agent and Parrish a professional Football Player. Zinn handled Parrishs NFL contracts for the first few years, all of which were for modest amounts. After several years, the team offered Parrish 250,000 for 3 years. Parrish signed the deal and then fired Zinn and refused to pay Zinn the previously contracted 10%. Parrishs reason, that Zinn did not do enough to obtain a better offer from a competing football team, was shot down by the court. A contract between player and agent that requires the agent to provide a good faith effort duty of care is not breached if the agent fails in a task in which the agent utilized good faith.

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2. Williams v. CWI, Inc., 777 F.Supp. 1006 Rule: An agent owed a fiduciary duty to his client Application: Williams, a young unsophisticated professional basketball player, contracted CWI to provide agent services, as well as investment, financial management, and tax advise. CWI then convinced Williams to invest a considerable amount of money in a company in which CWI had an interest, while not disclosing the interest to Williams. CWI took the money, and instead of investing the money, as planned, used the money for its own purposes. The court found that CWI not only breached its fiduciary duty, but also committed fraud. CONFLICTS OF INTEREST 1. The Detroit Lions, Inc. v. Argovitz, 580 F.Supp. 542 Rule: A fiduciary has the duty to inform his client when the fiduciary has an interest that is adverse to his clients. Application: Argovitz was the Agent for a young NFL player named Simms. While acting as an agent, Argovits was also in the process of buying a USLF Team. Argovotz was negotiating a deal between Simms and the Detroit Lions. Although the Lions were on the verge of signing Simms, Argovitz led Simms to believe that the Lions did not want him. Argovitz then negotiated a deal between Simms, his client, and the USFL team that Argovits owned. The Court ruled that this was a violation of the agents fiduciary duty. 2. Speakers of Sport, Inc. v. Proserv, Inc., 178 F.3D 862 Rule: Ill. Law: Promissory fraud is not actionable unless it is part of a scheme to defraud, that is, unless it is one element of a pattern of fraudulent acts. Application: Speakers was Baseball Catcher Ivan Rodriguezs agent. The contact was terminable at will. Proserv promised Ivan that if he signed with them, that they would ensure that Ivan would receive millions from endorsements. Ivan legally terminated his contract with Speakrs and signed with Proserv. Proserve could not get the endorsements as promised and Ivan then signed with a 3rd party for further agency services. The 3rd agency then negotiated a $42 million dollar deal in Ivan behalf. Speakers sued Proserv and argued that Proserve induced Ivan to leave Speakers through fraud. The fraud claim stems from Speakers allegation that Proseve knew that it could not deliver on their promise to secure for Ivan several million dollars in endorsements. The court ruled that Proservs promise was not tortuous, but an example of the acceptable methods of competition in the context of sports agency. Ivans contract with Speakers was terminable at will, and Ivan chose to terminate the contract. 3. Bauer v. The Interpublic Group of Companies, Inc., 255 F.Supp.2d 1086 Rule: In a suit for intentional interference with a contract, the plaintiff must prove that the act complained of was the proximate cause of the injury. Application: David Carr, a college football player that was about to be drafted, signed with agent Bauer. Bauer was the agent that Carrs family picked for him. Immediately following Bauers signing, Carr started to receive negative mailing about Carr. Dissatisfied that he did not play a role in the chosing of an agent, Carr fired Bauer several days after signing him. Carr then underwent a process of finding new representation. Carr eventually signed with Defendant, Interpublic. Bauer sued Interpublic, claiming that Interpublic intentionally interfered with his contract by 1) sending out

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libelous mailings and 2) courting Carr while he was signed with Bauer. The court dismisses both claims. It was not proved that Interpubic sent any tortuous mailings. The court also found that Carr had fired Bauer before he settled on a replacement agent and that Carr carried out an judicious search for representation, and was not enticed or induced by Interpublic. Carrs firing of Bauer has not related to his subsequent signing with Interpublic and, therefore, Bauer has no claim. NON-AGENT-SPECIFIC FEDERAL LEGISLATION 1. United States v. Piggie, 303 F.3d 923 Rule: Agents are individuals involved in sports are also bound to follow non-agent-specific laws. A scheme to deprive a university of its right to the honest services of college basketball players is within the definition if mail and wore fraud. Application: Piggie ran an AAU basketball team. He devised a scheme by which he covertly paid the best players in order to bring prestige and monetary gain to himself and his team. 4 of his paid amateur players went on to receive scholarships to play at the University level. The NCAA has strict rules prohibiting the players who are not true amateurs from playing. When it was discovered that Piggie had paid some players, several universities had to spend hundreds of thousands of dollars in investigations, lost revenues, and lost scholarships. While it is not a crime to pay kids to play basketball, those kids then committed fraud by telling their respective universities, through the postal service, that they have never revieved money to play basketball. Piggie was prosecuted using the RICO and mail fraud statutes. PLAYERS ASSOCIATIONS AUTHORITY TO REGULATE 1. Collins v. National Basketball Players Assn., 976 F.2d 740 Rule: Player Associations have the right to regulate agents. Application: Collins was a certified agent and represented Kareem Abdul Jabar. Jabar sued Collins for breaches of fiduciary duties unrelated to contract negotiations. The players association then decertified Collings, this barring him from being a player agent. Collins argued that his previous breaches of fiduciary duties unrelated to player contracts should not barr him from being certified as a player agent. The court ruled that 1) the players association has the right to regulate agents, and 2) within the right to regulate agents, the association was reasonable in its determination that any breach of fiduciary duty, regardless of context, is grounds for decertification. 2. Brown v. Woolf, 554 F.Supp. 1206 Rule: Player Associations may dictate the manner in which agents get paid (when, how much) Application: Agent here had a fee of 5% on a $800,000, 5 year contract ($40,000). Due to the team defaulting, the player was only paid $185,000 of the contract. The agent, however, collected the full $40,000 form the signing bonus. This is a demonstrative case that led to player association regulate the payment of agents. Contracts FORMATION: Spinello v. Amblin Entertainment Facts: Spinello sued Amblin, alleging they had appropriated his ideas and were using them for a new movie. Amblin told Spinello that they would review his script if he signed and returned a standard submission agreement. Spinello did,

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and the agreement contained an arbitration clause. Amblin later rejected his script and purchased another script to produce a movie which Spinello believed was based on his idea. Issue: Whether the agreement was a contract of adhesion. Holding: No Rule: In many cases of adhesion contracts, the weaker party lacks not only the opportunity to bargain but also any realistic opportunity to look elsewhere for a more favorable contract; he must either adhere to the standardized agreement or forego the needed service. In all prior contract of adhesion cases, the courts have concerned themselves with weighted contractual provisions which served to limit the obligations or liability of the stronger party. Rationale: Spinello had the opportunity to negotiate and simply failed to do so. When the agreement was submitted to him, he could have asked his agent to request deletion or modification or limitation of the arbitration provision, or he could have done so himself. However, he did not do so. Additionally, he had about 20 years of experience in the industry. Burr v. American National Theatre Facts: Defendant corporation authorized plaintiffs to offer to sponsors on its behalf a proposed tv program and agreed that plaintiffs should receive $1000 per show. Plaintiffs procured a named corporation to sponsor a series of programs in accordance with the agreement but corporate defendant refused to permit the sponsorship by the corporation the plaintiffs procured, thereby violating the contract. Holding: The grant of the authority to procure a sponsor, whether exclusive or not, was at least an offer to pay the agreed $ 1,000 per show if plaintiffs procured a sponsor, and according to the allegations of the complaint plaintiffs accepted the offer by actually procuring the sponsor, and defendant's offer thereby became a binding promise. Rationale: It was not necessary that plaintiffs should give a verbal promise in advance to procure a sponsor or use their best efforts to procure one. Defendant asked, not for a promise but for an act, the procurement of a sponsor, and a valid contract resulted when plaintiffs performed that act, even if they had not promised to do the act. Main Line Pictures v. Basinger Facts: Basinger entered into a contract with Main Line Pictures through her corporation, Mighty Wind. The contact was signed by Main Line and Mighty Wind and Mighty Wind was then to acquire Basingers acting services. Payment was made to Mighty Wind, who then paid Basinger. Later, Basinger decided not to act in the movie after the contract was entered into by Main Line and Mighty Wind. Main Line won a judgment of liability against Mighty Wind and/or Basinger, which lead to this appeal. Holding: The term and/or is inherently ambiguous. It gives rise to multiple meanings; specifically, it can mean either or it can mean both. Only if the options are synonymous is there no ambiguity. Corporations are separate legal entities, distinct from their shareholders and officers. Where it appears on the face of the contract that it is entered into on behalf of the corporation by its agent, the corporation is liable and the agent is not. Rationale: Individual professionals incorporate for a variety of reasons. Such personal service corporations are entitled to the same separability of identity as are other corporations. Mighty Wind and Basinger are not synonymous. Michigan Employment Relations Comm. Board v. Detroit Symphony Facts: Plaintiff, Chase, a trombonist for many years with the Symphony, was offered a one-year contract. After negotiation on salary, Chase rejected their offer by saying Get yourself another boy. I do not accept. Chase later contacted the Symphony and at that point was informed that the Symphony was auditioning another trombonist for his position. He then stated that he accepted the offer only to learn that in the Symphony's view the offer had been withdrawn. Chase argues that he was not hired as discrimination because of his affiliation with a union. Issue: Whether the MERC Board's conclusion that the Symphony's failure to rehire plaintiff Chase was motivated by anti-union animus is supported by substantial evidence Holding: No, Our reading of the cold record indicates that the finding of the trial examiner is more plausible than the finding of the Board . Ascribing due weight to the unique opportunity of the trial examiner to weigh the testimony of witnesses, our reading of the cold record is confirmed. We conclude that the critical finding of the MERC Board is not supported by "substantial evidence. Rule: The Federal "substantial evidence" test under the National Labor Relations Act, states that a reviewing court is entitled to consider the examiner findings.

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Rationale: The record is devoid of any evidence of animosity toward Chase prior to March 2, 1968. As far as this record reveals, on February 29, the Symphony Orchestra was anxious to have the services of Chase as first trombonist. He was offered a contract, as were all the musicians, and upon his protest that he had been offered less than he deserved, the general manager agreed and offered Chase a $ 10.00 a week increase over the contract offer. "It is the absence of evidence of animosity toward Chase for any reason and the apparent willingness and anxiousness of the Symphony Orchestra to employ Chase on February 29, that militates most heavily against the contention that the March 2 refusal to allow Chase to sign the contract was discriminatorily motivated." TERMS: Sophia Loren v. Samuel Bronston Productions Facts: Loren brought an action against the producer of the movie El Cid. Loren was the lead female role of the movie and she claims she did not receive the advertising that her written agreement entitled her. The provision states that Loren is to be given 100% size and type of the movie title and on the same line as used for the name of the lead male role. Under the injunction, Loren sought to remove the electric signs and changes in advertising for the movie. Holding: Under established authority, Lorens rights at this juncture are not so clear as to warrant such an injunction and the motion is denied. Rationale: The judge said that there was a genuine question whether Loren is really in danger of suffering the loss of prestige and other damage attributed to its nonobservance. Both Loren and the male roles names were the same size and type and on the same line. The only difference was that the characters names were smaller than the title of the movie. Yerkovich v. MCA, Inc. Facts: Agreement between parties in which Yerkovich gave MCA rights to Miami Vice in return for up-front compensation and a percentage of net profits from the show. Yerkovich alleged that MCA breached the Agreement by failing to account for net profits. Holding: The court found that there was insufficient admissible evidence showing that Yerk was entitled to additional money. Autry v. Republic Productions Facts: Autry brought an injunction to restrain Republic from exhibiting motion pictures in connection with commercially sponsored or sustaining tv broadcasts, where those contain appearances of Autry. Republic was editing and using some of the shots of Autry in connection with sponsors to imply Autry as an endorser of the sponsor. Issue: Whether Republic should be enjoined from cutting Autrys performances to approx. 53 mins and showing them in connection with commercial advertising over the television. Holding: Republic should not be enjoined from cutting Autrys performances and showing them in connection with commercial advertising over the television. Rationale: Under the contract, Autry granted for valuable consideration all rights, unrestricted to Republic in their ownership. Otto Preminger v. Columbia Pictures Corp. Facts: Preminger, as producer of Anatomy of a Murder, entered into a contract with Colombia Pictures to show the movie on tv. Preminger now alleges that he, not the television stations, has the right to the final cut and that the movie stations will ruin the movie with their commercial interruptions and so forth. Issue: Whether a producer has a right, in the absence of specific contractual provision, to prevent, by injunction, minor cuts in his motion picture, when shown on television, and the usual breaks for commercials. Rule: Implicit in the grant of tv rights is the privilege to cut and edit Holding: In these circumstances the court is inclined to the view that the right to the "final" cutting and editing, reserved to the plaintiffs, is limited to the original or theatrical production of the picture, and not to showings on television; and that as to such showings, in the absence of specific contractual provision, the parties will be deemed to have adopted the custom prevailing in the trade or industry. Rationale: The clause in this contract, general in its terms, giving plaintiffs the right to "finally" cut and edit as to the original production of the motion picture, must yield to the specific clause with respect to television showing, which contained no such right. A review of the testimony demonstrates that, at least for the past 15 years, the right to

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interrupt the exhibition of a motion picture on television for commercial announcements and to make minor deletions to accommodate time segment requirements or to excise those portions which might be deemed, for various reasons, objectionable, has consistently been considered a normal and essential part of the exhibition of motion pictures on television. Smithers v. MGM Facts: MGM casted Smithers in a role in their tv series Executive Suite under a most favored nations billing arrangement. This basically means that besides 3 named people, if any other performer receives greater compensation than he, Smithers shall receive that compensation. Up to 10 or 11 actors were given up-front billing while Smithers remained the same. MGM concedes that its contract with Smithers was breached, but takes the position that damages arising from such breach were speculative and incapable of ascertainment. Rule: Damages for breach of contract must, of course, be clearly ascertainable as to their nature and origin. However, it is clear that one who wilfully breaches the contract bears the risk as to the uncertainty or the difficulty of computing the amount of damages. Holding: A number of witnesses established the relationship between billing and the actor's future negotiations for compensation. The jury could reasonably conclude from the evidence that Smithers suffered an economic loss by reason of MGM's failure to live up to its agreement. Although witnesses were unable to estimate with precision how much Smithers had lost or how much he would earn in future years, the jury was provided a reasonable basis upon which to calculate damages. Buchwald v. Paramount Pictures Corp. Facts: Buchwald and Bernheim contributed to the success of Coming to America and the court had to determine the value of their services Issue: Whether the court was entitled to establish compensation within the parameters established by the evidence of the parties Holding: Yes, it is permissible for the court to consider the success of Coming to America in determining what compensation should be awarded to Bernheim and Buchwald Rule: In assessing the opinions of the valuation witnesses, however, the trier of fact is not required to accept the testimony of any one witness in total, but may instead, after balancing and reconciling the various opinions of the witnesses and their bases, decide upon a value which falls within the range of the opinion testimony. Rationale: In reaching this decision, the court is fully mindful of the fact that its task is to produce a fair and equitable result-neither a windfall to Bernheim nor unjust enrichment for Paramount. Additionally, since the standard for an expert witness is not mathematical exactness but only a reasonable approximation it is clear the trier of fact cannot be held to a stricter standard. BREACH: Great Entertainment Merchandise v. Vince Neil Facts: Neils loan out corporation and GEM entered into an agreement in which he was to perform a tour for at least 800,000 people. GEM had Neil sign an Inducement Letter in order to ensure that he subscribes to the underlying obligations of the loan out companys contract. Part of the inducement letter was a clause which is under interpretation because Neil did not play in front of the requisite number for fans. GEM moved for summary judgment. Issue: Whether Neil is financially responsible for his loan out corporation Holding: In light of NY law that a guarantee must be strictly construed, the Court concluded that summary judgment is no appropriate on this breach of contract issue Rule: NY law requires that the guarantee of an undertaking be in writing and that the language of the guarantee and indemnity agreement be strictly construed Rationale: Nowhere in the inducement letter does Neil appear to unequivocally guaranty his loan out corps financial obligations. Rather, the words suggest that Neil is merely guarantying his own musical performance. Assessing the plain language in light of the entire contractual sequence, the Court was troubled by the apparent lack of wording specifying a financial guarantee. Kass v. Young

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Facts: Kass was one of about 14,000 patrons at a concert in which Young was the star performer. Kass alleges that Young terminated the contract by walking off stage before the purchasers of tickets received the consideration of a full concert performance. Kass brings a class action against Young for $91,000 (14,000 ppl x $6.50 ticket price). Issue: Whether the class action suit was proper Holding: No, no notice had been given to the alleged class and no class had been certified Rule: Damages except when fixed by contract must be proved Rationale: Without determination of the proper class and of appropriate notice, the defendant would be subject not only to judgment in the purported class action but also to suits by individuals acting alone or in other asserted classes Michael Coppel Promotions v. Michael Bolton Facts: MCP claims that Bolton breach an agreement when he abruptly cancelled an eight concert tour just two weeks before the tour was scheduled to begin. Bolton move to dismiss for failure to state a claim under Rule 12(b)(6). Issue: Whether MCP is entitled to offer evidence to support their claims Holding: Yes, the Court found that MCP has pled a viable claim for breach of contract upon which relief may be granted. Rationale: Plaintiff has more than adequately stated a claim for breach of contract. MCP alleges that the parties reached a binding oral concert agreement in March of 1996. And although defendants contend that plaintif fails to specify the terms of the oral contract in the complaint, plaintiff has in fact specifically described such terms -- Bolton would perform eight concerts at various Australian venues, and was in turn promised specific compensation: the greater of $ 1,200,000 or 85% of net proceeds from ticket sale. MCP further alleges that industry practice permits the promotion of concerts once initial agreement has been achieved as to material terms, even though additional details remain to be finalized. CNA v. Phoenix Facts: Phoenix died from a drug overdose before the completion of two films in which he had contracted to appear. CNA attempted to state a cause of action for breach of contract against Phoenixs estate because of an agreement which included an obligation not to do anything which would deprive the parties to the agreement of its benefits. By taking the drugs, CNA alleged that Phoenix deprived the parties of his services, therefore breaching the contract Issue: Whether Phoenixs estate was liable to CNA for Phoenixs failure to perform Holding: No, the doctrine of impossibility of performance applies in this case. Rule: Death renders a personal services contract impossible to perform. In such contracts, there is an implied condition that death shall dissolve the contract. Rationale: The parties to the agreements could have provided specifically for the contingency of loss due to the use of illegal drugs, as they provided for other hazardous or life threatening contingencies DAMAGES: DGA v. Millenium TV Network Facts: Millenium hired DGA to work on a live broadcast on New Years Eve 1999 but cancelled a week prior to the showing. The cancellation occurred prior to the time DGA was scheduled to work on the telecast. Millenium has failed to pay DGA any compensation due under the terms of the contract. To secure financing, Millenium entered into a Bond with NAC which provided that NAC would pay DGA if Millenium fails to pay for any work or labor done. Issue: Whether the terms of the bond executed by Millenium and NAC encompass the amounts owed to DGA pursuant to their arbitration award against Millenium Holding: Yes, the Court finds that the Plaintiffs' arbitration award was based on labor done or work performed on the Telecast, and NAC is therefore liable under the terms of the surety agreement for the amount of the award.This finding is supported by the broad language of the bond, which requires NAC to answer for any work or labor done ..of any kind on the Telecast Rule: The pay or play principle reflects a bilateral promise between the employee and the employer that is integral to the entertainment industry. For the employer, the pay or play principle requires the employer to honor its promise to pay the agreed salary for the term of the guaranteed period whether or not the program or film is actually produced. In exchange, the employee-director is required to remain available for the scheduled dates by foregoing other employment options.

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Luster Enterprises v. Jacobs Facts: Luster and Winston seek a temporary restraining order against Jacobs based on the play Doctor Doolittle unless suitable credit is given to Winston. They claim that Winston is the architect of the screenplay and that suitable credit is to take the form of an acknowledgement conceived by Helen Winston. Issue: Whether injunctive relief should be granted against Jacobs Holding: No, the Court finds the substance of the claim to be without merit Rationale: If a screen credit is improperly denied to Winston by the defendants she has an action in damages. One of the forgotten functions of the damage remedy is to apprise members of the community of the rights which the court has adjudicated in the plaintiffs' favor. If the plaintiffs prevail in this action the attendant publicity and the subsequent damage award will make Helen Winston whole within her professional community. Outside of this small professional community, screen credits have little or no significance and any resulting harm by failure to include her name in the credits will be minimal. Tamarind Lithography Workshop v. Sanders Facts: By agreement, Tamarind was to provide Sanders a screen credit entitled A Film by Terry Sanders but Tamarind did not comply. A jury determined that Tamarind breached the agreement and awarded Sanders 25 gs in damages. Issue: Whether an award of damages is an adequate remedy at law in lieu of specific performance for the breach of an agreement to give screen credits Holding: The court finds that Sanders is entitled to relief consisting of the damages recovered and an injunction against future injury Rule: The availability of the remedy of specific performance is premised upon well established requisites. These requisites include: A showing by plaintiff of (1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract Rationale: It is plausible that damages awarded Sanders were for harms already sustained at the date of trial, and did not contemplate injury as a result of future exhibitions of the film by respondent, without appropriate credit to Sanders. It is manifest that the legal remedies available to Sanders for harm resulting from the future exhibition of the film are inadequate as a matter of law. The need for our finding the contract to be reasonable and supported by adequate consideration is obviated by the jury's determination of respondent's breach of that contract. The requisite of mutuality of remedy has been satisfied in that Sanders had fully performed his obligations pursuant to the agreement. Similarly, we find the terms of the agreement sufficiently definite to permit enforcement of the respondent's performance as promised. This is Me, Inc. v. Taylor Facts: Tyson, actress, through her personal services corporation, This is Me Inc., agreed to undertake the lead role in a Broadway production of The Corn is Green. There were several contracts at issue which she sued under for the unpaid portion of a 750,000 pay or play guarantee. Issue: Whether the Actors' Equity run of the play contract, the Actors' Equity security agreement and the contractual obligation to pay This Is Me $ 750,000 were each intended to be binding on all the same parties, and were intended to impose the same obligations on each of the parties, even though they were set forth in different documents Holding: Yes, there was sufficient evidence--the drafting history and chronology, the cross-referencing of the agreements, the integral nature of the undertakings for the stage and video performance, the relationships among the producing parties and entities, and the background assumptions furnished by the Equity rules--for the jury, as properly instructed, to find that Taylor and Bufman were personally liable on the pay or play guarantee Rule: Under New York law, all writings forming part of a single transaction are to be read together. New York law requires that all writings which form part of a single transaction and are designed to effectuate the same purpose be read together, even though they were executed on different dates and were not all between the same parties. Rationale: The various agreements in this case all relate to a single transaction: Ms. Tyson's services as an actor in the production of "The Corn is Green."

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Parker v. 20th Century Fox Facts: Parker was to play the lead female role in Foxs contemplated production of a motion picture entitled Bloomer Girl. A month before production was set to begin, Fox informed Parker that it would not comply with their obligations under the written contract but offered to employ Parker as the leading actress in another film entitled Big Country, Big Man for identical compensation. Certain things were different between the two movies, such as the fact that Bloomer Girl was a musical and Big Country was a western. Issue: Whether plaintiff's refusal of defendant's substitute offer of "Big Country" may be used in mitigation Holding: No, plaintiff's failure to accept defendant's tendered substitute employment could not be applied in mitigation of damages because the offer of the "Big Country" lead was of employment both different and inferior Rule: The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. However, before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived; the employee's rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages. Rationale: The mere circumstance that "Bloomer Girl" was to be a musical review calling upon plaintiff's talents as a dancer as well as an actress, and was to be produced in the City of Los Angeles, whereas "Big Country" was a straight dramatic role in a "Western Type" story taking place in an opal mine in Australia, demonstrates the difference in kind between the two employments; the female lead as a dramatic actress in a western style motion picture can by no stretch of imagination be considered the equivalent of or substantially similar to the lead in a song-and-dance production. Additionally, the substitute "Big Country" offer proposed to eliminate or impair the director and screenplay approvals accorded to plaintiff under the original "Bloomer Girl" contract and thus constituted an offer of inferior employment.

III. CHAPTER 6-REGULATING PROFESSIONAL ATHLETICS

A. OVERVIEW OF THE LEGAL FRAMEWORK

At the core of Sports Law: -3 substantive areas of law-Basic contracts, antitrust, and labor law principles. Contract Law-guided sports law initially Antitrust law became an issue as early as the1910's, but did not play a major role until 1950's Labor relations and labor law weighed in heavily to team sports in late 1960s 1. Contract Law 1st recorded case of contract dispute between team and a player was the Samuel Washington Wise case (1882)-refused to honor his K with the Cincinnati club of the American Association for baseball. 1884-Tony Mullane case-best known pitcher of the era was sued by the Union Association as a result of a K dispute. 1890-Players league formed-notable for litigation it produced. Following are 2 landmark cases: ? Raised in both was whether star ballplayers could escape their K's or to the contrary be enjoined from jumping to the nascent Players League?-In both cases, players prevailed. Case: Metropolitan Exhibition Co. v. Ewing, 42 F. 198 -Ewing court recognized the availability of a negative injunction in appropriate circumstances. 67

-If granted-a player in breach of an existing K would be prohibited from playing for another club. The court enunciated 5 criteria that must be reviewed in determining if injunctive relief was appropriate: (following suggests that 1 side must clearly win) 1) the breach is one for which damages would be inadequate compensation 2) the party seeking the injunction must have "clean hands" 3) the injunction must not be unduly oppressive to the defendant. (but, injunction can be oppressive) 4) the K must have mutuality or be founded on adequate consideration. 5) the terms of the K must be definite Held: Subject player K was not sufficiently definite to warrant a negative injunction. -Club's right to retain rights to the player at the end of the K was not adequately defined, and -there was insufficient evidence of general custom and usage in the trade to define the K's terms. Case: Metropolitan Exhibition Co. v. Ward, 9 N.Y.S. 779 -Court also recognized the appropriateness fo granting injunctive relief in some cases, BUT FOCUSED on the requirement that there be a likelihood that the club would succeed at trial on the merits on its breach of K claim against the player. -Court concerned with the player K's indefinited terms and its lack of mutuality. Lack of mutuality: Court emphasized that the club could terminate the K almost at will while the player was potentially bound to play for the club as long as it wanted him.--->thus, this evidenced a lack of required mutuality of contractual obligations at least sufficient to deny injunctive relief. Unclean Hands Doctrine: -occurs when the party seeking equitable relief has acted improperly, so that the court does not wish to endorse its behavior. This behavior does not have to be illegal or coercive, but only questionable enough for an injunction not to be granted. Philadelphia Ball Club, Ltd. v. LaJoie , 51 A. 973, Pa., 1902 Rule: (It seems to court that a more just and equitable rule is) where 1 person agrees to render personal services to another which require and presuppose a special knowledge, skill, and ability in the employee so that in case of a default the same service could not easily be obtained from others, although the affirmative specific performance of the K is beyond the power of the court, its performance will be negatively enforced by enjoining its breach -The damages for breach of such K cannot be estimated with any certainty and the employer cannot by means of any damages purchase the same service in the labor market. Washington Capitals Basketball Club, Inc. v. Barry , 419 F.2d 472, 9th Cir., 1969 P-Washington Caps D-Barry Facts: Barry signed another K during time when he was already restricted by a K w/ previous teams which moved to another city and was bought out by other owners. Issue: Whether his rights under original team were assignable to the new purchasing team?-(YES) Whether Barry should be restricted by an injunction from playing for any team but the one which held his rights? Rule: When no fraud or illegality exists, rights are fully assignable to successor. Also defines & applies unclean hands doctrine-see above.

B. ANTITRUST:
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I. ANTI-TRUST CLAIMS UNDER 1 OF SHERMAN ACT: -2 types of Analysis under this - (1)-Per se, or (2) Rule of Reason 1.) Per Se Analysis-(Ps prefer this; Ds dread this) Practices deemed illegal per se are those that fall within a division of conduct that is inherently anticompetitive, such as: price-fixing horizontal agreements group boycotts IF the conduct is found to be illegal per se, the court will not inquire into the business purpose or the actual effect of the offending practice. *Thus, agreements, fixing, controlling, raising, lowering, maintaining, or stabilizing the prices charged for products or services have long been viewed as so destructive that they are automatically considered in violation of the act.--->without need to prove harm. In cases where the per se analysis is used, the defense does not have an opportunity to defend the offending agreement; the Defense must argue that the rule of reason analysis should be applied instead. 2.) Rule of Reason Analysis applies to conduct that is NOT manifestly anti-competitive. The relevant inquiry is: Whether the challenged conduct unreasonably restrains competition? Principle purpose of the R of R standard: is to determine whether the challenged conduct has procompetitive results or anti-competitive results. To successfully prove an anti-trust violation using the rule of reason standard, the P must prove 3 things: 1) There is an agreement between the 2 separate entities 2) The agreement adversely affects competition in a relevant market. 3) The anti-competitive effects of the agreement outweigh the pro-competitive effects. Remember: For an agreement between 2 entities to be considered an antitrust violation, it must have anti-competitive consequences and be an unreasonable restraint on trade. The following 4 devices have been attacked on antitrust grounds in most of the major sports leagues-they restrict player mobility and bind players to certain teams: make argument if u see on exam.
1) Reserve Clause-in player Ks until the mid-1970s, gave teams unilateral right to renew a players K in perpetuity.-some player Ks still give team unilateral right to renew player Ks but NOT for perpetuity. 2) Draft-allows only 1 pro team to draft an eligible player and allows selected player to negotiate solely w/team that selected him. 3) Compensation system-still in effect in several leagues, requires team signing a free agent player to compensate the former team by giving up draft picks, players and/or money. 4) The right of first refusal-allows a players prior team to match any competing offer

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and retain the players services. This rule continues to exist in more moderate forms.

This Rule of Reason approach allows the Defendant to legitimize or argue its reasons for agreement. II. DEFENSES TO 1 SHERMAN ACT CLAIM OF RESTRAINT OF TRADE:

1) Non-Statutory Labor Exemption-Defense

A) New 4-Pronged Test For Anti-Trust Immunity Under The Labor Exemptionto attack elements of Claim (used by owners, league officials, etc. against player claims of antitrust): The challenged conduct must: 1.) Take place during and immediately after a collective bargaining negotiation. 2.) Grew out of, and was directly related to, the lawful operation of the bargaining process. 3.) Involved a matter that the parties were required to negotiate collectively 4.) Concerned only the parties to the collective bargaining relationship From: SCOTUS-Brown v. Pro-Football Inc., If this Defense by the owners, etc. is found to be valid, the Players have the following Options: i.) Decertification (of Union): To decertify a union is to break all formal ties with the union and give up the right to collectively bargain a CBA -Employs decert. By voting in an election with the NLRB by secret ballot. (As in certification election, 50% plus 1 is needed to pass) -This may also be used when the players are unhappy with their leadership of the union-that is the Union Representatives. *This can be an effective strategy because leagues are fearful of having courts decide whether their policies violate the Sherman Act. a) Labor Exemption after Decertification of a Union: *See McNeil v. NFL under Ch. 7 of Labor Laws Thus, after decertification the exemption ceases because 1st prong of Mackey Test (labor ch. 7) cannot be met. ii.) Collateral Estoppel: Jackson v. NFL case, 802 F. Supp. 226 (D.Minn. 1992) The doctrine of collateral estoppels may be used to get an injunction and demonstrates a likelihood of success on the merits.-It is used when: 1. The issue is identical to 1 raised in a prior adjudication. 2. There is a final judgment on the merits. 3. The estoppel party was a party or in privity with a party to the prior adjudication. 4. The estoppels party was given a full and fair opportunity to be heard on the adjudicated issue. 2.) Single Entity Defense-attacks 1st element of 1 Sherman Act claim-plurality of actors Relevant in 2 areas of pro sports: 1) Traditional Leagues using the defense against specific anti-trust challenges, and 2) New Leagues structuring themselves as a single entity so as to avoid anti-trust challenges. Attacks the plurality of actors requirement of 1 because a single entity is incapable of contract, combination or conspiracy. 70

The NBA, NFL, & NHL have alls argued this defense by stating they share broadcast and licensing revenues.- this argument has been Unsuccessful. Single Entity Defense Cases: 1) NASL v. NFL (2nd Cir. 1982)-NFL raised this defense in its policy to bar NFL owners from owning soccer teams in the NASL- the NFL Lost the case 2) Los Angeles Memorial Coliseum Commission v. NFL (1984)3) Chicago Professional Sports Limited Partners v. NBA IV (1996)-NBA limited # of games that a superstation could televise. NBA argues it created a single product and was therefore immune to Section I challenges. 4) Fraser v. MSL (2002)-Major League Soccer Players challenged the MSLs restrictive player constraints on 5 major grounds: 1.) Player salaries were unilaterally determined by a single person-the Dept. Commissioner. 2.) MLS enforces a salary cap, rules are only known to MLS and kept secret from actual MLS players. 3.) MLS, U.S. Soccer, and the world governing body, FIFA, inserted a system of transfer fees into the Standard Player Contract which prevents MLS players from signing w/other teams in other countries even if their MLS expired. 4.) The MLS Standard Player Agreement denies players a fair share of group licensing rights. 5.) The Standard Player Agreement contains a reserve clause, struck down in other sports, giving teams unilateral rights to renew their players K. *MLS-argued it was a single entity:
1.) That its profits and losses were shared in a manner similar to a corporation rather than like a traditional sports league. 2.) All players are employees of MLS rather than employees of the individual teams-Players receive paychecks from league, not teams. 3.) MLS has the right to assign marquee players to certain teams. MLS approves all trades. 4.) Individual teams do not own the right to their logos. *Players

contracts have

of MLS argued this structure was all a sham to get out of anti-trust violations. Court found: MLS was a single entity, based on the above and note, the players did not unionize before the action, because the league would have been protected by the labor exemption. 71

III. ANTITRUST CLAIMS UNDER 2 OF THE SHERMAN ACT-Monopolization: -2 prohibits unilateral monopolization and attempted monopolization. -To prove that a monopoly exists, 2 elements must be met: 1) the possession of monopoly market power and .-->(monopoly market power is different than market share) 2) the use of unacceptable means to acquire, entrench, or maintain that market power. *The objective of antitrust legislation as it pertains to monopolization is to: -ensure that companies which hold a natural monopoly in a given market do not actively discourage the rise of similar products in the market. -Courts generally require at least a 70% market share to justify a monopoly power violation argument. -BUT merely having a large market share or monopoly power does not violate 2 of the Sherman Act. IV. DEFENSES UNDER 2 OF THE SHERMAN ACT-Monopolization (2 Defenses): 1.) The Entity is NOT a monopoly. a) Larger Relevant Market-(ej: relevant market is entire world v. east coast of b) No Power to Control prices or exclude competition OR 2.) Natural Monopoly. -Under this defense, you argue you cannot help that you have a better product. Ej: The WNBA is better than the ABA. U.S.)

V. CLAYTON & TREBLE DAMAGES: Remember: under the 1914 Clayton Act, when a breach of the Sherman Antitrust Act has been proven, the monetary damages awarded are to be trebled (tripled). VI. ANTITRUST & ENTERTAINMENT: Broadcast Music Music, Inc. v. .Columbia Broadcasting System , 441 U.S. 1, 1979 P-Columbia Broadcast System D-ASCAP and Broadcast Music Inc. FACTS: CBS brought this antitrust action for price fixing against ASCAP and BMI. Most networks and businesses were buying blanket licenses at a fixed price from ASCAP & BMI SCOTUS is unwilling to say blanket licenses are a per se violation of antitrust laws. as some consumers may prefer to purchase blanket licenses. Court notes Congressional intent under Copyright Laws, which allow for blanket licensing. Issue: Whether the issuance by ASCAP and BMI to CBS of blanket licenses to copyrighted musical compositions at fees negotiated by them is price fixing per se unlawful under the antitrust laws? -Whether the effect, the purpose of the practice are to threaten the proper operation of our predominantly free-market economy--->thus, whether the practice facially appears to be one that would always or almost always tend ot restrict competition and decrease output and in what portion of the market,or instead one designed to "increase economic effiiciency and render markets more, rather than less, competitive? Rule:General rule under finding of price-fixing: is that the remedy is an injunction against the price-fixing. Blanket licenses are to be examined under a heightened rule of reason analysis if illegal price-fixing is 72

alleged. Application: As the Appellate court noticed, BMI and ASCAP over the years have made a market in which individual composers are inherently unable to compete fully and effectively; BUT-blanket licenses are unique and they expedite economic uses. VII. MORE ANTITRUST & PRO SPORTS: 1) BASEBALL-Exception Sherman Act Federal Baseball Club of Baltimore Inc. v. National League of Pro Baseball Clubs , 259 U.S. 200, 1922 D-National League of Pro Base Ball Clubs and American League of Pro Base Ball Clubs, composed of 8 incorporated base ball clubs joined as D's, et al. P-Baseball club incorporated in Maryland, member of Federal League of Pro baseball a corporation under the state laws of Indiana. Facts: P alleges Ds destroyed Federal League by buying its teams or inducing its teams to come to National League. Issue: Whether baseball contests between 2 different teams from 2 different states satisfy commerce under Sherman Act?-(NO) Rule: Sherman Act Cannot Be Used Against Baseball Because: 1) The business is giving exhibitions of baseball which are purely state affairs, and therefore, no interstate commerce exists. 2) That just because there was travel from state to state, the travel is a mere incident, not the essential thing. 3) Players were not a commodity and thus "not related to production Flood v. Kuhn , 407 U.S. 258, 1972 P-star baseball player-Curt Flood D-baseball commissioner-Kuhn reserve clause-in player K's gave teams the unilateral right to renew a player's K in perpetuity. (existed in baseball and other sports until 1970s) Rule 1. Baseball is a business and is engaged in interstate commerce. 2. Baseball's reserve system enjoys exemption from federal antitrust laws, this is an exception-an anomaly. ---Congress's positive inaction, has allowed previous decisions like Toolson and Federal Baseball to stand for so long, far beyond mere inference and implicaiton, has clearly evinced a desire not to disapprove them legislatively. *After this case, congress passed the Flood Act of 1998, giving baseball players nearly the same rights as other pro athletes; but it does not completely remove baseballs exemption. 2) Internal League Governance and Commissioner Authority in Antitrust Essential Facilities Doctrine: Essential Facility Doctrine (p 497)-AKA-"bottleneck principle"-taken from Hecht case states, "where facilities cannot practicably be duplicated by would-be competitors, those in possession of them must allow Rule: them to be shared on fair terms. -It is illegal restraint of trade to foreclose the scarce facility. To be essential: a facility need not be indispensable; it is sufficient if duplication of the facility would be 73

ecnomically infeasible and if denial of its use inflicts a severe handicap on potential market entrants. -Antitrust laws do NOT require that an essential facility be shared if such sharing would be impractical or would inhibit the defendant's ability to serve its customers adequately. Case: Mid-South Grizzlies v. NFL , 720 F.2d 772, 3d Cir., 1983 Issue-Whether the NFL has violated 1 and 2 of the Sherman Act when rejecting an expansion franchise and placing unreasonable restraints on trade and monopolizing interstate trade and commerce? -(NO) RULE: 1) The Sherman Act liability requires an injury to competition. If there was any injury to competition, actual or potential, therefore, it must have been to intra-league competition. 2) The essential facilities doctrine is predicated on the assumption that admission of the excluded applicant would result in additional competition, in an economic rather than athletic sense. Case: Levin v NBA , 385 F. Supp. 149, S.D.N.Y., 1974 Facts:Levin was a prospective buyer of NBAs Boston Celtics and denied entrance by NBA policy to own team. IssueRule-Denial of franchise ownership to Levins was not antitrust violation because there was no anticompetitive effect. -Relevant Market: In the antitrust context, relevant market has 2 components: 1) product market 2) geographic market Franchise Relocation-Raiders: Los Angeles Memorial Coliseum Commision v. NFL (Raiders I) , 726 F.2d 1381, 9th Cir., 1984 P-Raiders, and L.A. Coliseum D-NFL Facts: Raiders sought to relocate to LA, NFL teams voted 22-0, w/5 abstentions to forbid relocation -Raiders and LA Coliseum brought antitrust action. Issue:Whether the NFL Rule, which stated that unanimous approval of the relocation of the franchise was required by ownership, was in violation of antitrust laws? (YES) Rule: Restriction on franchise movement is anticompetitive because it perpetuates local monopolies. -A factor in determining the reasonableness of an ancillary restraint is the possibility of less restrictive alternatives which could serve the same purposes. -Move to L.A. would promote competition rather than stifle it. -The NFL made no showing that the transfer of the Raiders to LA would have any harmful effect on the League. 3) Broadcast and Sponsorship Restrictions Case: NFL Properties Inc. v. Dallas Cowboys Football Club, Ltd. , 922 F.Supp. 849, S.D. N.Y., 1996 Facts: Cowboys wore non-licensed apparel during non-NFL sponsor during and after national tv broadcast game. Issue: Whether the P's allegations that D wore other non-sponsor apparel on the sidelines of a nationally televised game and made public press conferences alluding that non-NFL sponsors were supporting the D's club, is sufficient to state claims for violations of the Landham Act and breach of K? Rule: YES-The Lanham Act is read broadly-43a of the Lanham Act, 15 USC 1125(a)-which prohibits unauthorized use of another's trademarks in a manner that creates a likelihood of confusion. 74

Chicago Professional Sports Ltd. Partnership v. NBA (Bulls IV) , 95 F.3d 593, 7th Cir., 1996 Facts: Bulls wanted to broadcast as many games as possible on WGN local superstation, NBA said if they did, they had to pay a fee to the leaguel Issues: 1) Whether the NBA is a single entity, in order to determine whether a Sherman 1 violation occurred? And 2) Whether the NBAs fee for the Bulls Broadcast is excessive and will reduce output? Rule: Unless a K reduces output in some market, to the detriment of consumers, there is no antitrust problem. Substantial market power is an indispensable ingredient of every claim under the full Rule of Reason analysis -IF NBA asks like a single firm-it can only be analyzed under 2 of the Sherman Act. -IF the NBA acts like a joint venture-it can be analyzed under the rule of reason analysis of 1 of the Sherman Act. Thus when acting in broadcast market, NBA is closer to a single firm than to a group of independent firms->meaning that P's cannot prevail without establishing that the NBA possesses power in a relevant market and that its exercise of power has injured consumers. *one of core ?s in antitrust is the output-lack of an effect on whether the output (tv broadcast of games in this case)will be reduced means the restriction (fee per game in this case) does NOT have a antitrust significance. 4. Antitrust & Rival Leagues: * Case: North American Soccer League v. NFL , 670 F.2d 1249, 2d Cir, 1982 Issue: 1)Whether an agreement between members of 1 league of professional sports teams to prohibit its members from making or retaining any capital investment in any member of another league of pro sports teams violates 1 of the Sherman Act?-(YES) 2)-Whether there is a separate market for sports capital and skill?-(YES) Rule: IF a sports league imposes restraint on trade it must demonstrate that any legitimate purpose cannot be achieved through less restrictive means in order to comply with 1 of the Sherman Act. American Football League v. NFL , 323 F.2d 124, 4th Cir., 1963 Facts: NFL placed expansion teams in certain cities, 2 of which were considered by the AFL. AFL brought a 2 Sherman Act violation for illegal monopoly ISSUE: 1-Whether the District Court properly determined the relevant market?(NO) 2- Whether the NFL by placing expansion franchises was seeking to monopolize the pro football market?-(NO) RULE: Natural Monopolies do not violate antitrust laws, unless the natural monopoly power is misused to gain competitive advantages. (p494) (p494)-It frequently happens that a 1st competitor in the field will acquire sites which a latecomer may think more desireable than the remaining available site, but the first comer is not required to surrender any or all of its desirable sites to the latecomer simply to enable the latecomer to compete more effectively with it. Relevant market was geographically the entire US because in locating franchises, near leagued has geographically restricted itself to one location. 5. Restriction of Players 75

Case: Philadelphia World Hockey Club v. Philadelphia Hockey Club (1972) Facts: WHA, rival of NHL, challenged NHLs reserve system from preventing it from obtaining the best product-star hockey players. The court did not buy the NHLs labor exemption defense, claiming rule was part of an earlier expired CBA, which was made before a players association. Issue: Whether the reserve clause of the original (collective bargaining agreement) CBA was valid in the latter CBA? (NO) Rule: -The relevant marketplace is the marketplace of today, not of the future 5 or 10 years. A monopolist cannot excuse his present predatory practices because someday in the future his total domination of the market place may be lessened. 6. NCAA & Antitrust NCAAs reduced power over Television-NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984): (p 419) Facts: NCAA operated D. I Television Football Plan, limiting # of televised college football games. Oklahoma and Georgia, members of College Football Association-which negotiated a larger # of tv contracts for its member schools, the NCAA announced it would discipline the schools and the schools subsequently brought antitrust suit. 1) claimed price fixing by NCAA and the threat of boycott by sponsors was violation of 1 of Sherman Act, 2) NCAA had monopolized market of college football-violating of 2. Holding: SCOTUS affirmed appellate court that NCAA plan had violated Sherman Act of 1 by unreasonable restraint of trade and illegal price fixing. 3 important principles from outcome: 1. it was first successful challenge of NCAA based on antitrust theory 2. it had significant impact on NCAA and athletics by initially reducing revenues for most institutions. 3. SCOTUS decided NCAA case which set precedent for future actions. SCOTUS established analytical framework for applying antitrust law to the sports industry. Court recognized competition itself-->in form of athletic contests among teams is the product that sports leagues offer to consumers. Court observed sports is an industry in which horizontal restraints on competition are essential if the product is to be available at all and that the integrity of the product cannot be preserved except by mutual agreement. Court noted need for uniform rule and a governing body to ensure fair and exciting on-field competition that is desirable to consumers. *Rules and league regulatory activities that further this objective are deemed to be procompetitive for purposes of the antitrust laws.

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