Class Notes for Exam: Torts and crimes as they relate to sports: The U.S.

. has more pending lawsuits in than any other country in the world. Contrary, we have the least amount of litigation in sports-related activity. Negligence: Acting in a way absence of care, is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. Tort: Civil wrong other than a breach of contract. Four Elements of Negligence: Duty: To act as a reasonable and prudent person in the same or similar circumstance. The average person, of average intelligence, of average contemplation, of their actions; to state a negligence cause of action, the defendant must owe a duty of due care to the person injured, or to a class of persons of which the plaintiff is a member. Breach: Failure to perform a duty. Ordinary negligence consists of acts or omissions which are not compatible with the standard of care exercised by an abstract man of ordinary prudence. Damage/Harm: Damage must be pled and proved as an essential element of negligence. Causation: For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. Although the notion sounds simple, the causation between one's breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred but for, or without, the accused party's breach of the duty owed to the injured party. Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused. (Must be the forcible cause of the harm suffered, only responsible for foreseeable harm suffered) Defense to Negligence: Assumption of risk Ex. Fenway Park and the assumption of risk that a foul ball can hit a fan. But, Fenway is not liable because of the assumption of risk. The average fan assumes that the risk is apparent. Would be impossible to have public fields/playgrounds if this was the case.

Antitrust: Anything that puts a restraint on trade Under the Sherman Act, you needed to prove antitrust beyond a reasonable doubt. This did not provide civil remedies Under the Clayton Act, civil remedies could be redeemed. Could seek damages. Provides treble damages - 3x the damages Two tests to determine guilt: Rule of Reason o Applies to vertical contracts o The burden is on the government to show that a violation is evident. Weighing and balancing the pros and cons of business. Per se Violation

 Cases:

o Companies on the same level of business enter into contracts. It may not be intentional to deter competition, but it does in effect. o Not necessarily wrong, but the burden is on the parties to show that it will not put a restraint on trade o 4 Main Types of Violations Price Fixing Market Allocation Ex. Geographic segregation Boycotts Ex. Sony and Samsung collude and decide not to do business with a distributor Tying Arrangements The condition of buying a product is the purchase of a second product Ex. Microsoft - If you buy a computer, you have to buy Microsoft software. Parties must show that a horizontal contract does not violate these 4 main types of antitrust activities. Difference: Burden to show fault in rule of reason relates to vertical contracts and government must show fault. Burden to show fault in per se violation relates to horizontal contracts and the involved parties must show there is no fault. Same test, but the burden of proof changes.

Nabozny v Barnhill: Goalie was acting within the scope of the game Player is not allowed to touch the goalie in this situation, but this was far outside the lines of the scope of the game. This act was extremely egregious to the scope of the game. Did the forward owe a duty to the goalie? o Yes, players must act as reasonable and prudent athletes o There is a breach Was there intent? Sued for negligence, not an intentional tort. It is our opinion that a player is liable for injury in a tort action if his conduct is such that it is either deliberate, willful or with a reckless disregard for the safety of the other player so as to cause injury to that player, the same being a question of fact to be decided by a jury. Negligence is much easier to win rather than intentional tort because intent is difficult to prove. In order to show breach, they not only have to show negligence, but a willful, reckless disregard for the safety of others.

o Doesn't mean you had to intentionally do it, but that you deviated so far from the norm that there was a disregard for the safety of others. Ex. If a pitcher hits a batter, how do you prove it is intentional?

Hauter v Zogarts:

Under negligence, there is strict liability - absolute liability Strict Liability: Strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability (including fault in criminal law terms, typically the presence of mens rea). Strict liability is prominent in tort law (especially product liability), corporations law, and criminal law. (Under strict liability, the manufacturer is liable if the product is defective, even if the manufacturer was not negligent in making that product defective.) Absolute Liability: Absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault. Product liability: says that if you are using a good in a foreseeable manner, than the manufacturer, distributor and seller are responsible. Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Called Joint & Several: Burden is not on the consumer to determine whose fault it is. It is up to the guilty parties to settle the fault. Disclaimers must be conspicuous; either on the box or first page of the manual, not on the 80th page in fine print. They said it was safe. Any statement of safety creates an implied warranty. Breach of this creates a liability. Every time there is a sale of goods, there is created a warranty of merchantability. Ensures that the product is safe for the foreseeable use of the product. Respondeat Superior: The decisions of employees under an employer hold the company liable, not the individual. Respondeat superior (Latin: "let the master answer"; plural: respondeant superiores) is a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment. This rule is also called the "Master-Servant Rule", recognized in both common law and civil law jurisdictions. Do not need to prove negligence, just show that damage was caused by using the product as intended. Breached the duty to provide a safe product for beginning golfers. The product was advertised as a completely safe product. It did not live up to its stated safety levels. The duty is put on the sellers to explicitly state the limitations of the product. Should not expect the consumer to understand an implied limitation. Opinion: After the jury found for defendants in this products liability case, the trial court granted plaintiff's motion for judgment notwithstanding the verdict. (Code Civ. Proc., 629.) Defendants appeal, claiming that substantial evidence supports the jury's verdict. We discuss below each theory of liability: plaintiff's first cause of action for misrepresentation, their second cause of action for breach of express and implied

warranties, and their third cause of action for strict liability in tort based on the defective design of defendants' product. We have concluded that plaintiffs are entitled to recover as a matter of law under each theory and, therefore, we affirm the trial court's order of judgment notwithstanding the verdict. Hackbart v Cincinnati Bengals Question: Is this an intentional tort? An intentional tort as it pertains to battery is the touching of another individual to cause harm. Intentional fault can be applied to the injuries as a disregard for the safety of others. o Court cannot control or make a decision on the violence of the game. o Can't just make social policy. Football is a form of warfare where violence and battery are the norm. o Is it foreseeable to experience an emotional outburst in football? Yes, therefore, no liability. He did suffer damage, but there was no intent to harm outside or egregious to the inherent organized warfare. Brief Fact Summary: Plaintiff, a professional football player, was injured when one of Defendants players intentionally struck him during a game. Both continued to play in the game and did not make any complaints at the time. Plaintiff later sued to recover for his injuries. Synopsis of Rule of Law: Even in an inherently violent situation such as a game of professional football, it is possible for one to go beyond its customs and so be liable for injuries in tort. Facts: Plaintiff was injured by one of Defendants players in a professional football game. Defendants player intentionally struck Plaintiff, but was not found to have intended to injure him. Neither of the two complained to officials at the time of the injury, but Plaintiff later sued to collect for his personal injuries. The trial court took judicial notice of the violent nature of professional football and found that the only remedies available to Plaintiff would be those administered within the game. Issue: Was the Trial Court correct in finding that Plaintiff had no remedy at law due to the extremely violent nature of professional football? Held: No. The judgment was reversed and remanded for a new trial. Despite the generally violent nature of professional football, there are rules prohibiting certain conduct such as the intentional striking of other players. The very existence of such rules demonstrates that there are boundaries to what constitutes acceptable behavior in the sport, and Plaintiff was entitled to a determination of whether his rights were violated. Discussion: The Court was called upon to analyze an implied consent defense. The trial court clearly found that one engaging in professional football was aware of its dangers and therefore surrendered his rights to seek redress for injuries sustained in the process. The Court explains here, however, that there is a question of scope to such consent, and the mere understanding of a sports generally violent nature does not extinguish all rights to recover for truly egregious conduct that is beyond the pale even of what professional football commonly entails.

Curtis Publishing v Butts "The greatest fix in sports since the White Sox of 1919 threw the World Series" Published in the Saturday Evening Post. o They did not do any outside investigation. Their only source was an outside source that said he overheard the conversation. Case characterized as libel (defamation of category). o Two types - libel (written) and slander (oral). Curtis said that they were protected by free speech. They were ruled against because they were acting negligence. They did not talk to Butts or any other sources besides the one outside source. They did not do anything to prove that the story was correct. Dealing with a "public figure." You can expect people will talk about them. They must not only show that the facts are false, but must prove malice (bad intent by the publisher). o Curtis publishing knew that by publishing this article, it would destroy Butts' reputation and career, whether the article was true or not. Court ruled in favor of Butts. $60K for lawsuit, $3M for punitive damages (punishment for wrongdoing, also to deter others from committing this act). Brief Fact Summary. The Plaintiffs, Butts and Walker (Plaintiffs), were public figures and not public officials. Both were awarded damages for defamation. The Defendant, Curtis Publishing Co. (Defendant), appealed to extend the constitutional safeguards outlined in New York Times to public figures. Synopsis of Rule of Law. A public figure has the same standard of proof for libel as a public official does under New York Times. Facts. The case in the casebook deals with two separate cases with different facts: * In Curtis Publishing Co. v. Butts, Defendant No. 1, the Saturday Evening Post (Defendant No. 1) printed an article accusing Plaintiff No. 1, Butts (Plaintiff No. 1), the coach of the University of Georgia football team, of conspiring to fix a 1962 GeorgiaAlabama game by giving Paul Bryant, the Alabama coach, crucial information about Georgias offensive strategy. Plaintiff No. 1 sued Defendant No. 1 for libel and a jury awarded him $60,000 in general damaged and $30,000 in punitive damages. After New York Times was decided, Defendant No. 1 requested a new trial. The motion for a new trial was denied because Plaintiff No. 1 was not a public official and there was ample evidence from which a jury could have concluded that the article was published with reckless disregard for truth. Both Plaintiff No. 1 and Plaintiff No. 2 were public figures, but not public officials. Four separate Supreme Court of the United States (Supreme Court) opinions, much condensed here, addressed the question of how the standards of New York Times applied. Issue. Do the constitutional safeguards required under New York Times v. Sullivan apply to a public figure who is not a public official? Held. Yes. Judgments affirmed. o Justice John Harlan (J. Harlan) argued that the actions cannot be analogized to prosecutions for seditious libel. Neither of the Plaintiffs has any position in government, which would permit a recovery by him to be viewed as a vindication

of governmental policy. Neither of the Plaintiffs was entitled to a special privilege protecting his utterances against accountability in libel. o Speech can rebut speech, propaganda will answer propaganda, [and] free debate of ideas will result in the wisest governmental policies. o Both Plaintiffs commanded a substantial amount of independent public interest at the times of the publications. Both had sufficient public interest and sufficient access to the means of counterargument to be able to expose though discussion the falsehood and fallacies of the defamatory statements. o Libel actions of the present type cannot be left entirely to state libel laws. o Both the Plaintiffs commanded a substantial amount of independent public interest at the time of the publications. o The Supreme Court holds that a public figure is subject to the same standards for recovery from libel as a public official. Looking at the evidence in the cases, the Supreme Court finds that Plaintiff No. 1 has meet the standard set forth in New York Times and Plaintiff No. 2 has not. Dissent. Justice Hugo Black (J. Black) argued that it is time for the Supreme Court to abandon New York Times Co. v. Sullivan and adopt the rule to the effect that the First Amendment of the United States Constitution (Constitution) was intended to leave the press free from the harassment of libel judgments. Concurrence: Chief Justice Earl Warren (J. Warren) stated that the differentiation between public figures and public officials has no basis in law, logic, or the First Amendment of the Constitution. Public figures like public officials play an influential role in ordering society. Plaintiff No. 2s should be reversed, as there was only evidence of negligence. As for Plaintiff No. 1s case J. Warren was satisfied that the evidence discloses the reckless disregard for the truth. Justice William Brennan (J. Brennan) argues that the evidence unmistakably would support a judgment for Plaintiff No. 1 under the New York Times standard. Discussion: Public figures have just as much influence and access to the public as do public officials. In this case, the majority would rather have the Plaintiffs, who are public figures, use newspapers, TV shows, public appearances and the like to battle defamatory statements made without malice. In the decision in this case, the Supreme Court takes a hands-off approach in dealing with defamatory statements that were made by mistake.

Jeff Novak Jacksonville Jaguars player who sued the team physician for $5M (negligence case). Suffered an injury on the field which needed surgery. Medical negligence claim on behalf of Jeff Novak, a former NFL offensive lineman for the Jacksonville Jaguars against the former head team physician Dr. Stephen Lucie, M.D. and his orthopaedic group. Coach told him he needed to play. He was not a blue chip player, so if he didn't play he would have lost his job. You would expect the doctor to provide the best medical care for the players, but they were being paid by the team. Physician had the best interests of the team, not the player, at hand.

o Did not care about post-career. Just wanted to get players on the field on game day. Guilty for not acting as a prudent doctor (operated in a non-sterile environment, resulting in a staff infection). o Changed the method in which team doctors are chosen. There is no longer a bidding process for the service. His attorney argued that improper treatment of the injury led to infections and complications, and that Novak woke up in a pool of blood about two feet in diameter before a preseason game in which he played about three quarters. Novak continued to bleed after the game, and despite pleas to be taken to the hospital, Lucie told him to board an airplane home for Jacksonville When they returned home, Lucie performed surgery to drain Novak's knee in a team training room. Dekle argued that the training room was unsterile and that the doctor's decision to have the surgery there caused the infection that led to Novak's retirement after the 1998 season

259 U.S. 200 - Federal v National League (1922)

National Baseball League bought all clubs of the Federal Baseball League, except the Baltimore team. Federal Baseball sued for monopolization and antitrust under the Sherman Act. Horizontal contract: An agreement between competing businesses operating in the same economic sphere in which information on pricing, technology, and products is shared to create greater efficiencies and market advantages. Horizontal agreements that lead to price fixing and limiting competition violate anti-trust laws. Does not fall under interstate commerce. As stated "they are purely state affairs" o The transport of fans across state lines is not a subject of commerce. o The court did not want to destroy the integrity of baseball. Time after a bloody war, entering into the Great Depression, did not want to take baseball away. Also, Justice Holmes was a baseball fan. Contrary, sports like boxing and all others fall under federal antitrust and are interstate commerce. Baseball has continuously been immune to federal antitrust laws as a result of the Toolson case. Facts of the Case: The Federal Baseball Club of Baltimore, Maryland was a baseball club and a member of the Federal League of Professional Base Ball Players. The National League of Professional Base Ball Clubs and the American League of Professional Base Ball Clubs conspired to monopolize the business of professional baseball by buying out members of the Federal League and by inducing members of the Federal League to leave. The Federal Baseball Club of Baltimore brought suit in the Supreme Court for the District of Columbia against the other leagues under the Sherman Act and obtained a verdict for $80,000. On appeal, the Court of Appeals of the District of Columbia reversed the lower court's ruling and held that the defendant baseball leagues were not within the Sherman Act's purview. The Federal Baseball Club of Baltimore appealed to the U.S. Supreme Court. Conclusion: Split Vote: No. Writing for a unanimous Supreme Court, Justice Oliver Wendell Holmes affirmed the decision of the Court of Appeals. The Supreme Court held

that the baseball leagues were not engaging in interstate trade or commerce as defined by the Sherman Act because the exhibition that is a baseball game is not trade or commerce as those terms were commonly understood. As such, the baseball leagues were not subject to the Sherman Act. 407 U.S. 258 - Flood v Kuhn (1972)

Kurt Flood - effectively created modern free agency Played 11 years in baseball. Declined a contract in Philadelphia at the end of his career because he would not be playing for his current team Reserve clause was intact, making the player exclusive property of that team. Other teams would have to pay high prices and draft picks to get a player. This deterred trading. Players of the time were not afforded the opportunity to change teams. That's why so many old players played for one team their whole career. Flood felt that the reserve system created indentured service (slavery in effect). He refused to play, and a lawsuit erupted. In the lawsuit, the case said that it seems that BASEBALL IS INTERSTATE COMMERCE. Basically said that it is an anomaly, and IT IS WHAT IT IS. Federal and Toolson have become an aberration of interstate commerce and antitrust. Kurt Flood Act of 1998 modified the Sherman Act to provide MLB athletes with the same remedies given to NFL and NBA. Effectively removed the reserve system, making it an illegal restraint on trade. It was a 1972 United States Supreme Court decision upholding, by a 53 margin, the antitrust exemption first granted to Major League Baseball (MLB) in Federal Baseball Club v. National League. It arose from a challenge by St. Louis Cardinals' outfielder Curt Flood when he refused to be traded to the Philadelphia Phillies after the 1969 season. He sought injunctive relief from the reserve clause, which prevented him from negotiating with another team for a year after his contract expired. Named as initial respondents were baseball commissioner Bowie Kuhn, MLB and all of its then-24 member clubs. Although the Court ruled in baseball's favor 5-3, it admitted the original grounds for the antitrust exemption were tenuous at best, that baseball was indeed interstate commerce for purposes of the act and the exemption was an "anomaly" It had explicitly refused to extend to other professional sports or entertainment. That admission set in motion events which ultimately led to an arbitrator's ruling nullifying the reserve clause and opening the door for free agency in baseball and other sports. Kurt Flood Act Case: 15 U.S.C. 26b:

543 F.2d 606 - Mackey v NFL Labor negotiation, particularly free agency - the Reselle Rule. Labor unions are legal, but they are forms of per se violations. o Matters of labor negotiations are exempt from antitrust laws.

Want to promote collective bargaining, so therefore it is not made a per se violation. It is a non-statutory agreement. Benefits, offseason workout schedules, off the field conduct, bonuses and incentives, ability to seek sponsorships, use of team logo, etc. all come under a non-statutory agreement and therefore are exempt from antitrust laws. Roselle rule o If you sign a player that has previously played for another club, compensation would be paid to the old team. o If agreement cannot be made on the amount, the commissioner must determine a value. o **This held true regardless if the contract had expired or not. o Players had no say in the Roselle rule. It was established unilaterally between owners and the commissioner. Players said this was unfair because it was one sided and put into all of the contracts. It is not a matter of labor, as the owners said, because they could not negotiate it. Antitrust would apply in the players argument, where it wouldn't for the owners side because they stated it as a labor issue. o The Roselle rule was outside of the non-statutory exemption. NFL - would not qualify for collective bargaining Ruling that it should qualify for collective bargaining, and is a per se violation of the Sherman Act. o Final decision: Effectively negated the Reselle Rule, because it violated the Sherman Act. It deters clubs from signing free agents, and the court found that the lift of the Reselle Rule would enable more player movement, thus the current rule restricts trade.
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Powell v NFL (1991)

Is an extension of Mackey. How far does collective bargaining go? At which point does it cross the line, and at which point do antitrust laws take hold? Can apply to all sports as it relates to a collective bargaining impasse. The right of first refusal, just like the Reselle rule. The only difference was it was negotiated between owners AND players. Players say that this may be an unlawful restraint on trade. "Arms length negotiations" An impasse is considered a method of collective bargaining, treats this as only illegal if it harms one side. Federal government will leave it alone, unless a party acts in bad faith or unfairly and creates an impasse intentionally.

788 F. Supp. 1042 - Five Smiths v NFLPA Players and agents were sharing salary information, and thus price fixing. Non-statutory labor exemption applies to good faith negotiations as to bona fide issues pertaining to the employer-employee relationship. Deemed that the conversations were not employer-employee relationship conversations, thus they violate the antitrust statutes in the Sherman Act.

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Vertical contract, thus the rule or reason is applied. Court decided that the pro-competitive aspects outweighed the anti-competitive aspects. The sharing of salary information was being used to denote market value.

518 U.S. 231 - Brown v Pro Football NFL made a rule that would allow 6 practice squad players were allowed to dress for games, and players argued that they were not being compensated enough. Starting salary of a practice squad player was about $1,000 a week ($52K) Players argued the salary was a unilateral decision by the league, and thus falls under antitrust. The NFL's argument was that these players were not NFL players, just practice squad. NFLPA's argument was that the practice squad could potentially be brought onto the field, and should be included in the NFLPA and be compensated as such. o Players paid dues out of their salary to be in the NFLPA, and this unilateral decision by the league would violate antitrust law. Court is saying that this offer was in good faith: At face value, the offer was not all that bad. Would have been "a bandage" on the issue if the NFL said that this would be the answer until a price was negotiated. They did not do this because it was a business move and they wanted to get a deal. There is high demand for these coveted positions. Wood v NBA: HOLDING: No. Wood v. National Basketball Association case was dismissed on the grounds of the non-statutory labor exemption. RATIONALE: Judge Carter found that both the salary cap and college draft provisions affect only the parties to the collective bargaining agreement, the NBA and player, and involve mandatory subjects of bargaining as defined by federal labor laws, and are the result of bona fide arms-length negotiations. The salary cap and college draft provisions are the concern of the Player's Association, not a player. Sports and Civil Rights Jackie Robinson was not the first African American to play organized baseball (there were 22 before him), but was the first to play in the major league WWII depleted the pool of good players during this time Branch Rickey of the Brooklyn Dodgers wanted to win very badly. Big rivalry with the NY Yankees o Scouts and Ricky never really met him. The triggering event that led Ricky to sign him was the peaceful protest that he demonstrated during the war. o Robinson was arrested and court marshaled for not moving to the back of the bus when a higher ranking officer told him to do so. o Ricky was a business man. The move to sign Jackie was meant to win a pennant, not to be the first mover on segregation. o His last season was '56. o He didn't quit UCLA to run off with his girl, he left for financial reasons.

The adversity in the first season was significantly downplayed. Death threats, being spit on, called names, and the like were common occurrences Racism in sports today o Rooney Rule: A proactive rule that states if you are going to interview for a head coaching job, at least 1 minority must be interviewed. o Commissioner Rooney enacted the rule due to pressure from various groups. It was enacted in 2003. More types of discrimination Title 9 Provides for equal opportunity in education. Schools are held to this because they receive federal funds, and if they do not comply with this title, they could lose this financial benefit. An educational opportunity given to males must also be given to females, and vies versa. As it relates to sports, there must be an equal number of male and female teams.
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