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Parameters of the Commissioner's Authority 1. Charles O. Finley & Co. v. Kuhn (1978) 1. The Commissioner stopped the A’s from selling the contracts of three of its MVP’s court allowed him to do this with the “best interests of baseball clause”. 1. The commissioner is hired by the owners and has broad sweeping powers 2. The Commissioner can act on any matter that involves the integrity of or public confidence in baseball. Integrity and public perception of baseball are to be determined by the Commissioner. 1. Here the Commissioner has expressed concern for 1. debilitation of the Oakland Club 2. lessening of the league's collective balance 3. the unsettled circumstances of the reserve system. 3. MLB Agreement 1. “the functions of the Commissioner shall be...to investigate...any act, transaction or practice... not in the best interests of the national game of baseball” and “to determine...what preventative, remedial or punitive action is appropriate in the premises, and to take such action...” Art I sec 2 (a) & (b) 2. Major League Rule 12(a): “no...[assignment of players] shall be recognized as valid unless...approved by the Commissioner.” 1. The clubs agreed to be bound by the CBA and Rules. 4. Must not act arbitrarily or capriciously. Decisions must be made in good faith, after investigation, consultation and deliberations in a manner which he determined to be in the best interests of baseball. Whether he was right or wrong is beyond the competence and jurisdiction of the court to decide. 1. Much like Chevron deference in Admin law, the commissioner is given wide deference to make such decisions because he is an expert and is held accountable to the owners. 2. Chicago NL Ball Club, Inc. v. Vincent (1992) 1. Commissioner Vincent wanted to realign the Cubs into the NL West division, the Cubs challenged his authority to do so. 1. 1982: Expansion and Realignment require: 1. 75% vote of all clubs 2. Consent of transferred club 2. March 1992: As one might imagine, the Cubs did not give their consent. 3. July 6 1992 : Commissioner does it anyway and realigns the Cubs 4. Question: Whether the broad best interests of baseball authority in the MLAgreement empowers the Commissioner to abrogate the Cubs right to veto their transfer (pursuant to the NL Constitution). 1. HELD: The power to investigate acts, transactions and practices does NOT encompass restructuring divisions of the NL. 1. There has been no affirmative conduct for the commissioner to investigate punish or remedy under Art I. Even if article I could be read this way Art. VII, expressly limits the commissioner's jurisdiction to resolution of disputes other than those whose resolution is expressly provided for. 1. Such in the NL constitution. (ArtI must be read in light of Art VII) 2. This is beyond the commissioner's power.
3. Commissioner Review of Game Officials (109 n.5) 1. Sometimes the decisions of game officials come into question. 1. Generally the commissioner will defer to the JUDGMENT call of the officiator because he is considered to be an expert, and he was there to witness the actual event, in real time. (wow sounds tons like admin law) 2. Umpires and referees are often considered to be final speakers of the game decisions. (Dont argue balls and strikes!) 3. Umpires are unionized, have conducted strikes and have some bargaining power 4. Though Commissioners have reversed game officials and ordered replays. 1. Depends on 1. Timing and severity of the mistake 1. Think a clock error early in the game may not necessitate replay, whereas a mistake late in the game may prevent that error from being corrected without a replay. 2. This is absurdly rare but, for an example see the George Brett walk off homerun against the Yankees. The homerun was later disallowed because of a pine tar violation. 4. NBA v. NBPA (2005) 1. This is the Ron Artest fight case. NBA Commissioner David Stern issued suspensions to each of the players involved with the fight. The players filed for grievance arbitration, because they contended this was an off the court issue. The NBA commissioner has final say on matters which occur on the court, off the court penalties are entitled to grievance arbitration hearings. The NBA ignored the union's notice. 1. HELD: The suspensions are entitled to an arbiter's review because the incident occurred off the court and in the stands. The arbiter was able to alter the suspensions. II. Discrimination in Sports 1. Discrimination is rampant in sports, but has generally shifted from on the field to off the field. 1. Not really discrimination so much as racial and gender inequity. 2. Several law's exist to curb discrimination in both the workplace and the educational settings 1. Title VII of the Civil Rights Act of 1964, Title IX as well 2. the 14th Amendment to the Constitution 1. Civil Rights Act of 1871 (ie section 1983) 2. Remember the State Action requirement 3. Equal Pay Act of 1963 3. Merit, Ol' Boy Networks, and the Black Bottomed Pyramid 1. Essentially, Black participants are concentrated at the bottom 1. Players 2. Whereas most of the top and mid-level non-athletic positions are filled by white people 1. There should be qualified black people for these spots, but they get passed over. 1. Theory: Ole Boys Club, the white guy at the top knows more white guys and hires them. Those guys in turn do the same all the way down. 2. Or Nepotism. 1. Don Shula's son, Don Shula is a coach. However, because his Dad was hired in an era where racism was normal, a black person does not get this same advantage. 3. While 8/10 NBA players and 68% of NBA and NFL players are Black respectively, only
5% of key sport management positions (front office, doctors, lawyers etc) are minorities. 1. Note, only 2.8% of top level managers in Corporations are black. Players who move up to the “corporate side” 1. George Brett was made VP of Baseball Operations just one year after his retirement from baseball. 2. Black people do not see these types of promotions. Affirmative Action? 1. The NFL requires that at least one black person be interviewed for a vacant Head Coaching position. This at least expands the the exposure that some up and coming african american coaches get. Coach Tomlin is the shiznit. 2. Justice Blackmun DISSENTING in Regents of UC v. Bakke: We must first take account of race in order to get past it. 1. Meh, IMHO. 3. Anti-Discrimination laws however make it so that taking race into account at any time could be a violation of the law. 1. Wygant v. Jackson BoE: J. White: ANY preference based on on race must receive a vigorous examination to ensure constitutional equality 1. JPS: “racial classifications are too pernicious to permit any but the most exact connection between justification and classification.” 4. Affirmative action can insinuate poor views on minorities that are generally unwarranted. For example, if Mike Tomlin got interviewed because the league forced them to, it may look like he got the job simply because of AA, or that he got the job at the expense of a qualified white. Even though, he deserved the job to begin with. 5. The article concludes that AA is necessary. 1. I think its ridiculous. Honestly, while it is a VERY hard case to make if the hiring practices at any employer are actually discriminatory there is a legal recourse. Otherwise, as race relations improve (as they have, though we are not perfect) we will see a rise in minorities who join the upper echelon of management. Gay People 1. To many, this is the worst thing someone can be in sports. For all of the progress that we have made in the real world, sports still lag behind in tolerance (or dare I say acceptance?) of homosexuals. 2. Locker room atmosphere enhances these homophobic feelings. 3. The hegemonic masculinity involved in the social development of males in sport means that sports have to confirm the masculinity of those in sports, and being (openly) gay flies in the face of that image that many portray as being an athlete. 1. Hegemonic Masculinity 1. he belief in the existence of a culturally normative ideal of male behavior 4. Dave Kopay, came out after 10 years of NFL play, Billy Beane and Glenn Burke were gay baseball players. 1. Roy Simmons was gay. His teammate Butch Woolfolk said he played with 4 gay players, he did not know Simmons was a fifth. 5. The text contends that gay men represent a more serious challenge to the political dominance of male elites than lesbians 1. However, there is a LONG history of abuse of lesbians in collegiate and professional basketball, and all female softball players are presumed lesbians except Jenny Finch. Gender Discrimination
1. Postema v. NL of Professional Baseball Clubs (1992) 1. Postema was a female umpire, who graduated 17 in her class of 130. He umped professionally in the GCL, FSL, AA Texas League, and then in the AAA PCL. 2. Other managers called her a “Cunt” and one MLB pitcher (Knepper) said if she was an MLB ump she would be an affront to Gd and contrary to the teachings of the bible (because the bible discusses baseball and umpires...) 1. Even when higher ups knew about this, they did nothing about such conduct. 3. 1987: AL Asst President and former head of Umpires: She needs to be better than everyone else to get to the bigs, because she is a girl. 4. 1989: Larry Napp AL Asst Ump Supervisor echoed that sentiment. The defendants never contradicted or corrected Napp, nor did they punish him. 1. She then received a performance evaluation which was poor, even though her peers considered her to be a better than average game caller. This was the first evaluation she ever got. Just months after she was fired. 5. ISSUES: TITLE VII 1. Hiring/ Promotion Claim 1. Postema cannot make this claim because no one was hired, you cannot claim that you were illegally not promoted or hired if no one was hired or promoted. Lack of vacancies are not a defense. 2. McDonnell Douglas Test: 1. A plaintiff meets her burden if you could prove you were qualified, a member of a protected group, unsuccessfully sought a vacant position, but the employer sought others with equal qualifications 3. Thurston Test: 1. Case made by establishing direct evidence of discriminatory practice. 2. There still needs to be a vacancy 2. Termination Claim 1. Claim that AAA fired her because the NL nor the AL were interested in considering her for employment 1. AL contends it lacked interest because they had no vacancies to fill 1. However, Postema correctly argues the list AAA gave was not meant merely for hiring right now, but if there would ever be interest. 2. AL was not her employer at the time of termination 1. If the P can show that a 3rd party was involved in her termination, she can bring a Title VII claim because the act's intent stretches beyond the typical employer-employee relationship. 4. Ludtke v. Kuhn (1978) 1. FACTS: On April 2, 1975 defendant Bowie Kuhn, Commissioner of Baseball, wrote the general managers of all major league baseball teams indicating that baseball should maintain a “unified stand” against the admission of women sportswriters to major league clubhouses. (The Yankees wanted to allow women, but then didnt because of the commissioner) 2. At the 1977 Baseball World Series games between the New York Yankees and the Los Angeles Dodgers, Melissa Ludtke, an accredited reporter assigned by Sports Illustrated to cover the Series, was informed that she was not permitted, solely on the basis of her sex, to enter either team’s clubhouse after the Series games. 3. Defendants claimed that women reporters were excluded in order to (1) protect the privacy of those players who are undressing or who are in various stages of undressing and getting ready to shower;(2) protect the image of baseball as a family sport; and (3)
2. HELD: Yes. 4. defendants asserted their interest in protecting the privacy of the ballplayers while undressing in the locker room.preserve traditional notions of decency and propriety. State Actor? 1. during the World Series games. The court held that the defendant’s policy of total exclusion of women sports reporters from the locker room at Yankee Stadium was not substantially related to the privacy protection objective and thus deprived Ludtke of that equal protection of the laws which is guaranteed by the Fourteenth Amendment. State action may be found where the direct perpetrator of allegedly discriminating acts is. ISSUE: Did the New York Yankees’ refusal to allow Ludtke access to the clubhouse violate the Equal Protection Clause and due process? 1.” Craig v. The New York Yankees’ refusal to allow Ludtke access to the clubhouse violated the Equal Protection Clause and due process. The Kuhn policy substantially interfered with the right of the plaintiff to pursue her profession as a sports reporter. Plaitiff claiming an Equal Protection Clause violation because she was intentionally denied equal opportunity to pursue her profession as a sports reporter. The determination of whether state action as applicable was made under the Burton Standard of “sifting facts and weighing circumstances. such as curtains and doors and wearing towels. New York City is substantially involved in Yankee Stadium and leases those premises to the Yankees. Burton (1961). along with the practice of refusing to allow accredited women sports reporters to enter the locker room. male members of the news media with television cameras were allowed in the Yankee locker room immediately after the game and broadcast live from that location. 14th Amendment Claim: 1. “so entwined” with an agency of the state that that agency must be deemed responsible for the private entity’s acts. 2. If any sports reporter is to have immediate access to athletes in a locker room or clubhouse setting. As justification for the complete exclusion of female reporters from the clubhouse at Yankees Stadium. through a private entity. 3. 3. 1. Accommodations. 5. state. However. Women reporters who had been given access to locker rooms in other sports had found that a substantial portion of their material came from the locker room and thus access to the locker room is an important part of their job. The lease provision requires the Yankees to comply with all local. “To withstand constitutional challenge…classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. These locker room encounters were viewed by mass audiences which included many women and children. then it should be given regardless of gender. shows that the latter was “substantially related” only to maintaining the locker room as an all-male preserve. whether it be women’s access to men’s locker rooms or men’s access to women’s locker rooms. could have easily been implemented. This practice. Disabled Athletes . The right to pursue one’s profession is a fundamental “liberty” within the meaning of the Fourteenth Amendment’s due process guarantee. and federal laws.” Burton (1961). The facility is devoted to public use and is maintained and improved with the use of public funds. 1. Boren (1976).
” 3. The PGA rule conflicts directly with the policy of the ADA as the rules need be altered for “individuals” and in Martin's case the modification of the rule is not “game changing. Scalia DISSENTING: 1.. Court : 1. Casey Martin (2001) 1. HELD: In this situation the golf cart does NOT fundamentally alter the game of golf. Golf tournaments include lots of rest and refreshments. however.000 to enter and is therefore a consumer. section III of the ADA states no individual shall be discriminated against on the basis of disability in the full and equal enjoyment. because participation is a privilege included in the spirit of Art III. 1. Public accommodation is usually broadly construed. Court: Even so.” to decide What Is Golf. 1.of any place of public accommodation. Casey Martin is a golfer with a degenerative leg condition.. HELD: It does. 3. 1. 1. Martin is an independent contractor. Whether the Americans with Disabilities Act (ADA) protects access to professional golf tournaments by a qualified entrant with a disability. which made it difficult for him to walk a golf course during tournaments. PGA says.privileges. aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery. Inc.. Art III allows limits the extent to which discrimination is not allowed. and the rules of the game of golf do not prevent golf carts. PGA says. that the PGA TOUR has some legal obligation to play classic. Issues 1.1. 1.. 2. and among the several States. the PGA denied him that use claiming it would fundamentally alter the game of golf.[and] is not an essential attribute of the game itself. this is the highest level of golf and they want to incorporate the element of fatigue into the skill of stroking. I am sure that the Framers of the Constitution. He requested use of a golf cart. which is “nutritionally less than a Big Mac” 2. They walk 5 miles which is 500 calories. The PGA's rule is “based on an optional condition buried in the appendix to the rules. 1. Title III only applied to consumers and that the claim that is job related can only be brought under Title I. The essence of golf is shot making. Whether a disabled contestant be denied the use of a golf cart because it would fundamentally alter the nature of the tournament because everyone else walks. If one assumes. fully expected . but the act specifically mentions golf courses as a place of public accommodation so construction does not matter. 1. PGA Tour. Platonic golf–and if one assumes the correctness of all the other wrong turns the Court has made to get to this point–then we Justices must confront what is indeed an awesome responsibility. If the alteration that is required would fundamentally alter the nature of such good. Martin paid $3. However the court also says that Title III is not limited to consumers..or accommodations. but Title I only extends to employees. 2. Expert: Fatigue from walking a golf course for 4 days is insignificant. laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations. v.... It has been rendered the solemn duty of the Supreme Court of the United States.
negotiators. why the need regulations . Agents Duties and Responsibilities 1. III. Also considers athletes outside business opportunities 1. Does the mark dishonor by comparison with what is inferior. Agents are widely considered to be the one who represents the athlete in contract negotiations. endorsements. Pertinent Regulations 1. or file his tax returns without bothering his client. stock broker. 1. Money management may also be another function of the players primary agent 1. is yes. the CoA overturned the TTAB because of laches. Agents are: 1. traveling secretary. 3. 3. Needs familiarity with CBA. Laches. I think Plaintiff waited 3 months. 2. the law and the links. 4. Develop financial plans 5. 2. TTAB ordered cancellation of Redskins mark on grounds that it was disparaging to Native Americans. having you agent manage your money is ill-advised. 1. Though. wants. the player's representative 1. decency or propriety (substantial composite of the general public standard) 2. Inc. Is the mark shocking to the sense of truth.that sooner or later the paths of golf and government. public relations guy etc. would once again cross. IMHO. Disparaging Marks 1. In 2005. estate planner. depreciate. 2. when the plaintiff sits on the case/ his rights long enough that the defendant reasonably believes they will not exercise those rights and acts to their detriment in that belief. and it will henceforth be the Law of the Land. (1999) 1. Personal Services 1. In order to understand the regulations. that walking is not a “fundamental” aspect of golf. 1. for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer. Immoral or Scandalous marks 1. This is an example of giving one person too much power. the agent who conforms and fulfills the needs of his client has a happy client 2. his player's needs. Harjo v. 2. desires. other players. if given this power he could pay the athlete's bills. or why there should be more or improved regulations of sports agents we need to know. slight. expertise or experience required to be an Agent. 1. various marketing campaigns 1. Decides which opportunities are prudent and help his player's pocket and image. The Court ultimately concludes. degrade. while also negotiating the terms of the agreement. Pro-Football. we learn. lawyers. tax consultants. financial conditions and good business judgment. affect or injure by unjust comparison (referenced group standard) 2. There are few rules regarding the minimum standards of competence. Sports Agents 1. and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question.
disruption of current contractual obligations 7. while not aimed at agent activity. Income mismanagement 2. this also lacks teeth 4. excessive fees 3. 1. Honestly. or require registration. It cannot do jack shit to an agent 1. Any contract made in violation of the act renders the contract void . approximately 34 states have adopted the UAAA. overly aggressive client reimbursement practices 6. US v. Included mail fraud claims due to letters attempting to induce the athletes to fraudulently misrepresent themselves to their schools on forms. Requires agents to register 2. The NCAA has an agent registration system. Therefore if there were to be an agent regulation law. State and Federal Legislation 1. 2. Student athletes may contact lawyer to confer on contracts. but that lawyer can have no part in the negotiation of that contract. 2. There are many statutes that. 2. Piggie: agents involved in a fraudulent scheme to have players play and be paid to play in a summer amateur league between HS and College. certainly capture some of their acts. where there would be more uniform standards.1. Some states have attempted to created administrative schemes to regulate the agents. where only registered agents can contact school officials to request contact with the student athletes 1. Tries to monitor the activities of sports agents 1. Tortious interference + other common law claims 3. misappropriation of funds entrusted to the athlete. Also note that the power of the NCAA to punish is generally to punish the member institution. Walters v. note that the major concern of the NCAA is to maintain the student/amateur status of its athletes. Though the athlete may lose eligibility 2. The agents future income is far greater than any penalty the NCAA can impose 3. Uniform Athlete Agency Act (UAAA). 2. not laws and are meaningless 2. The NCAA 1. 1. representation of multiple players seeking the same employment 4. 1. incompetence 5. conflicts of interests 1. Racketeer Influenced and Corrupt Organizations Act (RICO. rather than have each state create a huge mess. Fullwood: Agents convicted on RICO violations for making violent threats to student-athletes and threats to infringe on the potential careers of students who refused to sign with them. 1. I'd rather a federal administrative agency exist.remember from batman?!) 1. (NY included) 1. 1. it seems here that if the agent does something illegal there is already a law that covers it and punishes for it. 3. As an agent has said (Trope): They are rules.
All of the major sports unions require agent registration (wow there is a lot of registration the NCAA. licenses. there is no analogous situation to the sports agent. because the union has a duty represent all members of the bargaining unit equally. Federal law and Unions so far require it. Deals with solicitation. furnish advice on business and tax matters. seek endorsements and assist with off-season employment. which also includes a background check of education. No jobs. brought an action to recover commissions that were allegedly due under an SRK. agents must warn that the contract jeopardizes their eligibility. Bitchin. 3. 2. The agent was to negotiate contracts. If the Agent is a lawyer then he must comply with the ABA Model Rules of Professional Conduct. minimum competency and CoIs. Congress passed in 2004. The plaintiff performed some of these obligations. states that agents cannot take a negotiation fee unless the player earns more than the MLB minimum. whereas his agent only wants what is best for his clients. Player's Unions 1.this shit is a mess) 1. Notice must be sent to the school AD within 72 hours 4. 1. benefits and NFLPA regulations and other issues. MLBPA. Furthermore. 1. There is also a fee ($1650)+ an annual fee 2. advertising. State law. NFLPA requires an application. the union negotiates the CBA. past jobs. So the union greatly effects what the agent does. Typically unions are the employee's exclusive bargaining representative. he solicited some investment advice and assisted defendant in investing a small amount of his money in buying a house. 1. . There is tension between the union and the agent. 4. criminal and civil records and involvement in sports. no endorsements. 3. 3. I have all three (pending) 3. 4.and terminates all financial liability or consideration owed the other party. Sports Agent Responsibility and Trust Act (SPARTA) 1. bar membership. Zinn v. The agent secured three professional football team contracts for his client and pursuant to the SRK was entitled to a 10% agency fee. Parrish (1981) 1. Plaintiff. NFLPA sec 6 includes a grievance procedure too and empowers the imposition of sanctions. Essentially regulates much of the UAAA 5. which must cover wages. 1. an agent. fees. I sorta called this earlier. Agent Abuses and Litigation 1. though. 5. 1. hours and terms of employment. Agent must also pass a test on the Cap. NFLPA also permits a maximum 3% of the player's salary to be paid to the agent 3. Wow. In labor law. An agent cannot register with the MLBPA unless a player designated that person as his agent. 2. 3. Bitchin. empowers the FTC to enforce the prohibition. prohibits deceptive acts or practices by agents 2. Contracts signed with Student-athletes. a minimum of a 4 year degree plus an MS or JD 1.outside of the sports agent or entertainment agent.
Argovitz (1984. Defendant alleged that his agent acted as an investment advisor under 15 U. nor have fraudulent intent. Sec. defendant alleged that plaintiff failed to perform his duties competently. The agent does have the obligation to make a full and complete disclosure of all areas of potential conflicts of interest and must receive prior consent from the athlete if representation is continued after this disclosure. He was also partial owner of the USFL's Gamblers. Initially the player was going to take a lesser deal with another club but the agent promised a better deal else where. Player only received $185k of the $800k he was promised. plaintiff satisfied his obligations by performing these duties in good faith. 80(b)-2(a)(11) and since he was not registered. Inc.000 he was owed. Walters gave Fullwood appox 8. v. All of this is not allowed by the NCAA. The agent must inform the principal of all facts that come to his knowledge which may be material or might affect his principal's rights or interests or influence the actions that the athlete may or may not take. Fullwood 1. the agent received all $40. 1. 4. before his eligibility had ran out. 1. Walters claims Tortious interference with existing contractual relations . It only calls for a good faith effort. if there is recklessness or oppressive conduct are demonstrated. 2. that had financial troubles. 3. the contract was void. There are also significant financial differences between the USFL and the NFL. and got it. The making of a false statement by a dominant party in a confidential or fiduciary relationship or by one who holds himself out to be an expert upon which the plaintiff relied to his detriment. Plaintiff alleges a breach of fiduciary duty. 1. Argovitz was an agent for Sims. Fullwood was a runningback at Auburn during the late 80's. 2. He did not inform his client of any of this. However. or breach of confidence coupled with unjust enrichment which shocks the conscience 2. Punitive damages can possibly awarded. Detroit Lions. The agent must not have any conflicts of interest that might influence or affect his ability to do the best job for his client. acts or course of action where one gains an unconscionable advantage. HELD: The investment advice was merely an incident to the primary purpose of the management contract which was to negotiate a professional contract. HELD: Nothing. Woolf (1983) 1. 3. The defendant need not know that statement is false. Agents Walters ans Bloom signed him to a contract while still in college. Fullwood ditches Walters and signs with Agent Kickliter. aff'd 1985) 1. 2. After college. a team to which he directed his client. Brown v.A. Constructive Fraud (multiple formulations from which the court doesnt pick) 1. The actions of the agent do not necessarily have to prove successful. plaintiff sent his client to H & R Block. and that there is no per se rule regarding punitive damages in such a case.S. 1. the player had to renegotiate his contract. However.no off-season employment and. for tax advice. the case says that there might be a cause of action for constructive fraud. During this time.000 and secured a security interest in Fullwood's future career. This case is about an agent who secured a deal with a hockey club. maybe. The contract establishes the rights and responsibilities between the parties. Walters v. including the NFL's stability.C. In short.
Court says: The observance of these rules is in the public interest of the citizens of NY. Allows you to write the noncritical language you prefer but wouldnt insist upon. There is a public policy exception to enforce otherwise valid agreements 1. 1. so an agent looking to sign student-athletes could be found to have committed a tortious interference. ELEMENTS 1. Arbitration rights: Just like the above. public trust. No evidence of either requirement 3. 1. Negotiating tips 1. Contracts and Sports: Negotiation. because of the acts repugnant to public policy the right to arbitration is overridden. Formation. There are tons of sports contracts. Desires of clients 3. NYS has given the NCAA constitution some teeth. form contracts 7. or referee between thieves. It may be advisable to wait for an offer so as to not underestimate your adversary. Given the above.” 1. 1. and Enforcement 1. . Other laws (like sports broadcasting act etc) 5. Here.1. 1. and the loan represents a “betray[al] [of] an important. if perhaps naïve. Collective Bargaining 4. Requires that the defendant's sole motive was to inflict injury 2. but if you negotiate from your demands you are working on your terms. Statistics 6. Tortious interference with Prospective Economic Advantage 1. Be available to clients who are in the midst of contract offers and negotiations. The court refused to make Fullwood pay as they declined to be the “paymaster of the wages of crime. Side note: Athletic Scholarships are contracts. D's knowledge of that contract 3. IV.” 4. Negotiating from your own demands 1. damages 2. existence of a valid contract between P and the other party 2. 2. 2. Requires that the defendant employed unlawful means to make the injury 2. Bargaining history 2. D's intentional procurement of a breach of contract by the other party 4. they range from food suppliers to television to player contracts to corporate sponsorship deals. knowledge of the contract is not alleged nor is the procurement of breach 1. They all require special knowledge of the circumstances that apply in each situation. Enforcing contracts that require fraudulent conduct 2. precedent 2. its a stressful time. Though an agreement may be unenforceable in NY as contrary to public policy even if no statute is violated if the sovereign has expressed a concern for the values of said policy. ELEMENTS 1. As for the loan: Accepting a loan from unaccredited institutions or accepting money for play violates the NCAA rules. on your field rather than theirs (whoever they are). NY has tax laws designed to foster national amateur sports 2.
HELD: He can keep the $70k. Gotham Football = JETS 2. Whether an oral contract to train a boxer for as long as he fights professionally constitutes an enforceable agreement. though how they are resolved can be based on your bargaining power. Rescission is allowed because the inability of a party to perform a K after the . Contract Duration 1. Sample v. 1. Each contract refers to an individual season and were all executed separately. Where the duration of a contract is indefinite. It is smart to cost out the contract 1. Terms of the contract make it clear that injury in a given season entitles him only to the benefits of that year's contract. Sample signed three separate documents with the Jets which would require he play for them for 1968. largely because his contract forbade him from pursuing other alternatives leading to irreparable damage. 2. Sample's lack of representation. Bonuses and Incentives.3.Failure to Pay as a Material Breach 1. Sample got injured in 1969. Tyson 1. Salary. 4. the majority makes the duration of the fighter's career to be more definite than death. Not the same subject matter because it required performance at different times. put a monetary value on all of the items so that each side knows what they are liable for. unequal bargaining power and sophisitcated negotiation skills are not valid arguments. contending that the three agreements constitute one contract. 4. 2. 3. because generally a rescission of contract requires that the part give back the money conferred. Gotham Football Club. HELD: These are three separate contracts. but that is all.will. At-will employment is a the bedrock of employment law. 5. which included a $100k signing bonus. 1. Separate K's are read as one when the refer to the exact same subject matter or were intended to effectuate the same purpose or specifically integrated. Inc. 4. Be sure to resolve all issues with ambiguous or vague terms 1. Alabama Football had used the P's name to its advantage and had received benefits from it. 1. 1. therefore the claim is dismissed. Where the terms of a contract is clear you cannot consider extrinsic evidence. 3. terminable at any time. Dissent: The term is indefinite. He received $70k of it when the team became unable to pay. v. This is a result driven decision. 1. 1969 and 1970. 1. the relationship will be found to be at. Stabler signed contract with Alabama. 2. Alabama Football. Inc (1973) 1. Know when to pick your battles. However the court held: 1. 2. Stabler files suit claiming he is owed the remaining $30k. and he demanded his 1970 injury benefits. Rooney v. If the term is indefinite or absent the court will find a presumption of at-will that is rebuttable. The intent of the contract must come from the contract itself. and there need be a specifically timed duration to get around it. Here the majority found that the terms were sufficiently definite and therefore enforceable 1. Stabler (1974) 1. 2.
and when his contract ran out he signed to play in the ABA Cleveland. 3. Enforcement 1. Timing is important here too. Likelihood of success on the merits? 2. 1. Side note: This case is an NBA equivalent acceptance of the reserve system. Boston Celtics LP v. Would the injunction harm the public interest? . Does the balance of harm favor Shaw or the Celtics? 1. (he was in the top 20% of scorers) 1. HELD: C. Barnett (1961) 1. Negative Injunction 1. Barnett played in Syracuse.J. 4. Lack of injunction would cause irreparable harm? 1. As a matter of contract law. Cuse notified Barnett that his K had been renewed.K is made is proper grounds for rescission. so he attempted to finish his term in italy (the second year of his k can be rescinded to play in the NBA). issued a preliminary injunction. The DC properly issued the preliminary injunction. we can see later that in cases like Messersmith. Central NY Basketball. while the Celtics lose out on a player they covet. TEST for Negative Injunction 1. that this sort of practice is not okay today. Shaw (1990) 1. with exceptional skill and ability and is of peculiar and particular value to the plaintiff. he is more likely to be seen as exceptional and irreplaceable. This is the negative injunction. Player's skill is important 2. He signed with BOS. v. Likelihood of success on the merits 3. Shaw was contracted to play in Italy. Breyer writing for the CoA. but then realized that the deal was for below market value. Policy discretion which allows judges a wider range of options 2. Balancing of the harm 1. Arbitrator found for the Celtics and the D. Inc. Here note that Shaw plays and gets paid any way. 2. pursuant to a clause which allowed them to do so (reserve clause?) 1. Unique or irreplaceable 1. 2. regardless of testimony stating otherwise that Barnett is exceptional. HELD: Injunctive relief ordered because Barnett was unique. 4. the timing would have prevented the team from being able to intelligently planning for next season. 3. irreparable harm 2. 3. specific performance of a contract will be ordered when the damages are unable to be estimated because of the unique nature of the contracted for good or service.C. However. The contract that they agreed to says that they agree that he is in-fact exceptional and unique 2. however the Celtics came along and offered him a deal to play for them. The fact that the Cleveland organization was willing to pay him more than the Syracuse clubs was in addition to the Syracuse pay raise indicates. 1. Elements for Preliminary Injunction 1.an injunction which causes one not to breach a contract. When a player is moving to enhance his financial benefit. 5.
Rick Barry signed a contract to play basketball for the Oakland Oaks. 1. but this is obviously commerical. I think this is analogous to a trade. This is the 4th one. V. Hirsch v. The Oaks were acquired by the Washington Capitols.2. False Light 4. and general support of labor policy. 2. 1. Schonhorn made a golf game which included the names and profiles of 23 golfers including Arnold Palmer. NY Statute: Makes it a misdemeanor and a tort to make use of a name. 5. Barry (1969) 1. 2. The Capitols sought a preliminary injunction to prevent Barry from playing basketball for any other team. 1. but all of their assets were assigned to the Capitols. 1. The court ruled the Capitols were entitled to the injunction (provided they could prove irreparable injury) in order to maintain the status quo pending final determination of the case 1. Plaintiffs never gave permission for the use of their names and were not compensated. 1. Inc. which makes it the closest to status quo that is attainable. Johnson & Son. Inc. 2. Pro-Football (1952) 3. Appropriation of the plaintiff's likeness or name. 1.distinct from the dissemination of news or information. even if it is true. peaceable. The use of biographical information for the purposes of commercial project is a violation. 3. Inc. Case also supports the deference to the arbitration process. The use of biographical information in general is NOT a per se violation. (1967) 1. Intellectual Property and Sports 1. Gautier v. famous people are entitled to less rights in this regard but there are still protections. giving publicity of a highly objectionable kind with respect to private information about the Plaintiff. 3. the status quo would have been playing for the Oaks. portrait or picture for advertising purposes or purposes of trade without written consent. NBA rookie of the year and NBA All star. Intrusion upon physical solitude or seclusion 2. Barry was an elite college player. 4. The privilege does not extend to commercialization of his personality. Barry then signed to play with the San Francisco Warriors. and "irreparable injury" as injury which is certain and great and which cannot be compensated by the award of money damages. Prosser's 4 privacy torts: 1.. v. Palmer v. where a contract is assigned from one team to another in exchange for good consideration. 1. uncontested status between the parties which preceded the present controversy 1. Court: Sure. Schonhorn Enterprises. Plaintiffs contend Schonhorn violated their right to privacy. Washington Capitols Basketball Club.C. Personally. (1979) . S. The court defined "status quo" to mean the last. There is a news worthiness exception. Defendant: plaintiffs waived their right to privacy because of their status as famous athletes 1. . HELD: Schonhorn violated the golfers' right to privacy 1.
HELD: 1. although other privacy rights were rejected in prior decisions of this court. However. cause confusion. and took place at a sporting event (running as opposed to football).” 2. the actor's goods or services are those of another 4. they called it Crazylegs (one could see how this would happen as women shave their legs.) 3.” 1. protects primarily the property rights in the publicity value of aspects of a person's identity. Trade name 1. or 2. 2. it is appropriate for this court to recognize a cause of action to protect this right. A designation use by a person to identify his business. Here is the standard: 1. Property rights of commercial value are to be and will be protected from any form of unfair invasion or infringement or from any form of commercial immorality. 1. Johnson's first ad included a cheer similar to the one used at U Wis. Hirsch testified as to the ACTUAL CONFUSION required by trademark law. Elroy Hirsch is a football player who has a unique running style which led to his nickname Crazylegs (again. This cause of action exists as well. Hirsch played in the NFL and in professional basketball. Likely to 1. or like here.. 2. (2003) . and can be akin to passing off.). prevention of unjust enrichment 3. 1. 2. During his career his used his nickname on many endorsements. Jireh Publishing. 1. Prosser: It would be ridiculous if Samuel Clemens had a cause of action for the use of his name but not for the use of Mark Twain 2. the actor is the business of or associated with the other 3. (NOTE: this case determined a cause existed not the merits of those causes. Here. though he was careful with it's use refusing to associate it with cigarettes and things of that sort. the actor's g's or s's are APPROVED OR SPONSORED by the other 6. “Because the right of publicity – the right to control the commercial exploitation of aspects of a person's identity – differs from other privacy rights. the actor's g or s's emanate from the same source as the other 5. Trademarks need to be connected with a good or service. one could see just how this would happen). my guess is the last two apply. a trade name is more appropriate here. the name is associated with being of high character because of all of the TIME and EFFORT devoted to THAT PURPOSE. Appropriation 1. interest in controlling one's reputation. Inc. vocation or occupation provided such use is not illegal or contrary to policy. The misuse of a trade name is unfair competition.1. 2. Defendant makes shaving cream for women.. Supported by public policy: 1. ETW Corporation v. 2. rather. cause prospective purchasers believe that 3. 1. “Protects not merely the right to be let alone but. mistake or deception. Infringement 1. Trade name claim 1.
However. Not every word or symbol constitutes a protectable mark. A piece of art which potrays a historic sporting event communicates and celebrates the value that our culture attaches to such events. Like Elvis goods. A celebrity’s name may be used in the title of an artistic work so long as there is some artistic relevance . pencils. The print is expressive. It is not reasonable to believe that any image of Woods originated from him. (now the court must balance Woods' IP right to Jireh's 1st amendment right) 4. Movies. 1. flanked by his caddie. HOLDING: 1. prints and other pieces of art are afforded first amendment protections. However. of art prints.1. Zacchini v. calendars. Right of Publicity is an IP right that is inherent to every human being to control the commercial use of his or her identity. The first amendment protection extends to entertainment and other creative works making such claims largely inactionable. Speech is protected even when it is carried out in a form sold for profit. which will earn money will not deprive Woods of his ability to . 2. 1. pens. 3. trading cards-Class 16. the RoP is fundamentally constrained by the 1st amendment. Scripps Howard: The first amendment does not trump the RoP when the Plaintiff's entire act is published. Literal depiction for commercial gains will not. This is the Tiger Woods case. 1. 2. 3. To have the court hold that it does. the first amendment will almost always trump the RoP claim unless there is a purely commercial purpose. 1. This print. The use of Woods' name on the envelope and description is purely descriptive and used in good faith. and a text that comes with the print (not on the print) said the print features Woods "displaying his awesome swing. Unless one image is consistently being used to sell a product. Court holds as a general rule that a person's image or likeness cannot function as a trademark. When the PI outweighs the 1st amendment then the Lanham Act will apply. 1. It must be proven that it does the job of identifying the source and distinguish from others. 5." This work was sold as a limited edition print. with celebrities in artistic works we use a test that balances the first amendment with the public interest in avoid confusion. photographs. If the name or likeness is used merely to attract attention to the work then it loses it's first amendment protection. First Amendment Defense: 1. would be to give Woods himself protection as a living trademark. there is artistic relevance and there is no explicit misleading here. The fact that expressive works are sold does not diminish it's degree of protection. 2. In false endorsement claims. Rush created an art print called "The Masters of Augusta" featuring Tiger Woods in the center. that is where there is going to be the belief of origin or endorsement. 2. posters. Here. notebooks. Transformative Elements Test: Where the work contains significant transformative elements it is less likely to interfere with the economic interest held by the plaintiff and also has full 1st amendment protection. Based on the court's analysis. and entitled to full protection of the 1st amendment. the idea is that of likelihood of confusion. ETW owns numerous TMs for the mark "Tiger Woods" including categories 3.
. NBA v. Names with historical facts however do not rise to meet that . they had a contract with MLBAM which ran out. 2. 3.transmitted “real-time” NBA game scores and statistics taken from broadcasts of games in progress to pager owners on STATS' site on America Online. CBC continued to use the names and statistics of the MLB players. that Motorola and STATS did not infringe NBA's copyright because they reproduced only facts from the broadcasts. 4. the pager manufacturer. 1. Inc. 1. and elsewhere. CBC is a company that ran a fantasy baseball platform.reap benefits for endorsements and appearances. the appellate court established a new test for misappropriation claims under the INS doctrine. Motorola. the plaintiff's misappropriation claim must meet five criteria: 1. 5. CBC Distribution & Marketing.” much of that decision. 2. Inc. The appeals court held that under the facts of this case. and the appellate court reiterated. to be actionable. HELD: MLBAM and the MLBPA failed to make a claim for being unable to show both elements 1 and 3 1. STATS. defendant is in direct competition with a product or service offered by the plaintiffs. the name was used in conjunction with the players enforcer personality. the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. without consent 3. Name as a Symbol of Identity 1. and Motorola. The court made a clear distinction between the event itself (which is not protected) and a broadcast or report about the event (which is protectable by copyright). 4. the NBA had not established a claim for misappropriationunder this test. 3. where Spawn character Tony Twist was designed to invoke the personality and name of NHL player Tony Twist. The Second Circuit Court of Appeals ruled that while the state's misappropriation law. Survives copyright preemption as applied to “hot news. and 5. 1. show that the D used the Plaintiff's name as a symbol of his identity 2. In order to make a claim to right of publicity under Missouri State Law (The Restatement Standard) you must: 1. the information is time-sensitive. with the intent to obtain a commercial advantage 2. v. not the expression or description of the game that constitutes the broadcast. Under the test. The NBA sued for misappropriation under NewYork state law. without using their identities. Inc. TCI Cablevision. a provider of sporting event scores via pager and online. was preempted by the Copyright Act. The trial court held.. Compare to Doe v. MLB Advanced Media LP (2007) 1. plaintiff generates or gathers information at cost.. which went beyond “hot news” and precluded the use of other information. and therefore his name was a symbol of his identity. In TCI. (1997) 1. In its ruling. Inc. CBC only used the names and historical facts about the players. defendant's use of the information constitutes free-riding on the plaintiff's efforts. Associated Press. based on the case of International News Service v.
Sports Broadcasting Acts of 1961 and 1966 2. the fact that this was for profit does not rob it of protection (see ETW) 4. 2. this is not a use of player information to sell an unrelated production 2. that court refused to use a theory of publicity. 4. Public Policy 1. 2. Evidence that the defendant used the celebrity's name to attract attention to it's own product or service will serve as proof of such an intent. Players have little interest here because the protection provides little in the way of economic success nor would the use of their names effect their reputation such as to diminish it's endorsement value. cannot be considered separately from the general body of anti-trust law with only 2(ish) exceptions 1.standard. However. it is expression. The consumer's interest in access. Gionfriddo balancing test 1. Intent to Obtain Commercial Advantage 1. It does not prevent the athletes from making a living from their sport or from endorsing a product. like in most bodies of law. any more than they endorse box scores. Names and stats are historical facts. as is interactive speech 6. Palmer involved photos and a right of privacy. The right of the players to be protected from unauthorized publicity against the public interest in dissemination of news and information consistent with the freedom of speech and the press. 2. 4. This speech is protected by the first amendment because 1. Reserve System and the Antitrust Laws: Primer. 2. Baseball Exemption 2. 2. 5. recitation and discussion of factual data concerning athletic performance commands a substantial public interest. the baseball exemption 1. 3. 3. VI. and are therefore not copyrightable. Palmer came before Zacchini and therefore is merely persuasive and nonbinding. it is hard to conceive that using the names would give CBC a commercial advantage over any other fantasy provider because all fantasy providers use player names and stats. There is also no reason to assume that the players endorse this item. First Amendment 1. Distinguished from Palmer 1. entertainment speech is protected by the first amendment 5. (which is essentially what fantasy sports are). The Copyright act would not preempt a Right of Publicity claim. The use of names and statistics do not undermine the policy behind the right of publicity. albeit in a less traditional form. Facts are inherently unoriginal. Copyright Preemption 1. 2. which are protected by the first amendment 3. Anti-trust Overview 1. Most anti-trust cases arise in the traditional manufacturer-wholesaler-retailer economic structure . 1. Sports.
There is no implied right of action though. Sherman Anti-Trust Act (1890) 1. “ Every contract in the form of trust or otherwise. this sounds a lot like section 1 of Sherman. Deals with the prohibition of the “tying” of goods or services. AFL. The question means that we need an action of two or more persons or entities. 2. 2. was the contract. See Brown v.. Again.is declared to be illegal” 1. 2. Sherman Section 1 1. Basic Anti-trust Framework for section 1 1. Standard Oil v. Again. Which laws will apply to sports? 1. Inc 518 US 231 (1996) and the Labor exemption 3. (Actually. these attempts have failed miserably. boards and franchises often attempt to argue that the typical body of anti-trust law should not apply to them 2. 2. Section 5 of the Federal Trade Commission Act 1. there has been some success in gaining greater scrutiny of the facts in such cases because it is undeniable that sports are to some extent very different from traditional businesses. Was it a vertical or horizontal agreement? 1. makes price discrimination illegal 3.. combination or conspiracy requirement met? 1. Copperweld Corp v. . See Below 2.: They need to be separate entities. are agreements made between or among firms or persons on the same level of the market. and rarely adds anything in terms of analysis. in restraint of trade. Though. 3. Pro-Football. Sports cases are often considered “landmark” and find wide applications in nonsports situations 1. Independence Tube Corp. Section 7 1. Horizontal Agreements 1. subsidiaries are not wholly separate. See Below 2. US: unreasonable restraint of trade 2. it is an FTC cause) 4. Contract.. Section 2 1. Nor can a company contract with itself. Section 1 1. usually covered by Sherman sec 1. 1. combination or conspiracies (or the 3 C's) are just another way of saying that there need to be multiple economic actors. or exclusivity. Clayton Anti-trust Act (1914) 1. Section 3 1. So this is purely a government cause of action. prohibits unfair methods of competition in or effecting commerce. Prohibits M&A's which would substantially lessen competition or to create a monopoly.NFL mergers etc 3. or conspiracy. This is the case that leagues have tried to build the Single entity argument off of. Outside of baseball. Therefore they are agreements between current or potential competitors.1. Did the challenged conduct involve an agreement ie.see American Needle 1. For this reason sports leagues. Section 2 1.
Socony-Vacuum Oil Co. exclusive vertical agreements can limit others ability to produce a product or enter a market. Was it one of the per se violations? 1. rather than doing this independently. Nearly all sales of products include a vertical agreement of some sort.restrictions on free and open price competition pose an actual or potential threat to the central nervous system of the economy. distinguish the two and we can see it is more likely that a horizontal agreement will be found in restraint of trade. All of the above. while horizontal ones rarely are. A pro-competitive horizontal agreement would be if two firms purchased supplies together allowing them to reduce prices. Difference in analysis 1. Perhaps a vertical agreement can cause other companies to expend greater amounts of money in order to get a material 6. Example: League agreements with television companies 2. CBS . Analysis 1. If the source material is rare. Though.. Team affiliations with minor league franchises (note that the franchises themselves are typically owned by someone other than the team. Example: two tech companies opening a research center together for joint research 3. 3. Or pooling funds for a research facility. when the effect was incidental to an agreement which was designed to improve the competitive working of the market place. An anti-competitive horizontal agreement is if all oil distributors got together to limit production or raise prices. Horizontal ones reduce the competition in the market. 3. Vertical price fixing really has not yet been an issue in sports. which is why 10 years ago Norfolk was the Mets AAA affiliate and now Buffalo is). Horizontal Price Fixing 1. Such as a seller of raw materials. (For this reason look out for it on the exam) 2. 1. Vertical agreements facilitate the functioning of markets and facilitate development. and lead to the exercise of monopoly power. 2. price fixing will not be a per se violation. Agreements that raise. an agreement on multiple levels of production or sources. Example: Player's union demands represent horizontal agreement amongst the players 2. BMI v. a manufacturer and a distributor working together.” US v. 2. Vertical agreements are essential. Example: Sports teams agreeing to respect each other's exclusive territories. 5. Vertical Agreement 1. “. Horizontal agreements replace competition with cooperation. 1. 2. 4. man power involved plus the public interest in such a product. 3. 2. lower or stabilize prices are per se violations 1. Maybe companies researching cancer can go horizontal considering the amount of money..1. Distinguishing pro and anti-competitive agreements 1. But I am making this shit up. 1.
to deal with others or a third party. Nothern Pacific Ry. 4. typically from horizontal competitors. Horizontal conspiracies to allocate territories. Boycotting firms typically have dominant power in the relevant market. Though. CBS (1979) 2. which would allow the . BMI v. Sports Example: In order to buy season tickets you must buy preseason tickets. If it was a per se violation. some courts. dividing up customers or otherwise imposing non-price restraints. 2. Horizontal Market Division 1. Group Boycotts 1. facility or market required for the third party to compete. in order to by Twins rights you must buy Minnesota North Stars rights. 2. Even though there was no agreement to stabilizing prices it was held to to be a per se price fxing violation. Though no claim has really been made in sports. Simple agreements to to avoid each other's territory or customers are such a division. an agreement by a party to sell one product but only on the condition that the buyer also purchases a different or tied product. Honestly. when the effect was incidental to an agreement which was designed to improve the competitive working of the market place. This type of action prevents one of the conspirators from independently deciding who to deal with and prevents the third party from operating in an open market. 4. 2. Sports Example: PSL's and season tickets 3. price fixing will not be a per se violation. Ex: Bundling team rights. 2. Topco Associates (1972) [PS this is a BIG fucking deal in sports.] 2. Where an east coast dominant firm agrees not to go west so that a dominant west coast wouldnt move east is a per se violation. As far as horizontal market division goes. Often includes cutting off a supply. 1. such as the 4th circuit have allowed a narrow affirmative defense. concerted refusal. Though price doesnt have to the be the object of agreements 1. 1. 3. because not all of them are. US (1958) 1. Tying 1. I do not see the multiple actors. Northwest Wholesale Stationers v. 3. Joint efforts by firms to disadvantage competitors by either directly denying or coercing suppliers to deny relationships the competitors need in the competitive struggle. US v. 1. SoconyVacuum. this is more Clayton 3 claim rather than Sherman 1 claim. Pacific Stationary and Printing (1985): describes which types of group boycotts are per se illegal. This can be used to leverage market power in one market into power in another. v. 2. does it merit per se treatment? 1.(1979) 3. 1. major oil companies agreed to purchase all excess gas supplied by independent oil companies to prevent prices from dropping wound up stabilizing prices.
and again the two commodities should be treated as part of the same market” 4. to monopolize any part of the trade or commerce among the several states. US/ Std Oil Co. 5. (1975) 1. The agreement or conduct adversely affected competition in the relevant market. then under the rule of reason: 1. “Substitutability in production refers to the ability of firms in a given line of commerce to turn their productive facilities toward the production of commodities in another line because of similarities in technology between them. Relevant Product Market 1. of Okla. See above 2. If the pro-competitive outweigh the anti-competitive. Section 2 1. 1. What are its pro-competitive effects? 1. Partnership v. Trustees of Rex Hospital / NCAA v. Ltd. NSPE v. or combine or conspire. Okla. which could be either a product or geographic market. v. price. the area of effective competition in which the product or it's . Which one. Brown Shoe Co v. though this is debateable. is decided by the trier of fact and will be set aside only if clearly erroneous (International Boxing Club v. Hospital Building Co v. What are it's anti-competitive effects? 4. US (1978): the inquiry is confined to consideration of the impact on competitive conditions. The relevant market is the area of effective competition within the defendant operates. cross elasticity of supply will also be high.case rule of reason examination if the defendants acted with the purpose AND effect of achieving a legitimate public policy objective.. “ Every person who shall monopolize. Relevant Geographic Market 1. Board of Regents Uni.” 2. Where the degree of substitutability in production is high.. Courts are moving more toward a rule of reason for many HMD's. du Pont : “The market is composed of products that have reasonable interchangeability for the purposes for which they are produced. (SCOTUS 1984). Establish a relevant market 1. Board of Regents of Univ. Charles O. Inc v. Chicago Professional Sports. NBA (1991) et al. Monopolization Elements 1. not as the NSPE asserted that a general benefit to the safety of the public was sufficient. 5. 3. may have broadened the inquiry. Though through NCAA v. If not. 3. US v.. or attempt to monopolize. After reading it I cannot understand the exceptions to the group boycotting per se rule. shall be guilty of a felony.. Twin City Sportservice. 1. Section 2 Analysis 1. 1. Finley & Co. is there a less restrictive way to achieve the same effect? 5. use and qualities considered. For analysis of the relevant market see Section 2 analysis. US 2. was there an agreement between two or more persons? 1. “ 2. US) 3.
however in reality. size of the firms competitors. 1. that sounds like a lot of bullshit. Learned Hand: 66% is. Defenses 1. economic and physical barriers to expansion as transportation costs. 2. encouraging competition. market share is the most commonly used method. and customer convenience must be considered. 2. the conduct is moving the defendant at a steady rate toward higher market shares. 2. the monopoly power was acquired through some sort of wrongful. The existence of an agreement 2. 2. the wrongful conduct helped the monopolist maintain its power. Location and facilities of other sellers are important. in between is iffy. delivery limitation. 3. Inc (1977) 1. the conduct of the monopolist constituted an improper use or abuse of its monopoly power. Attempt to Monopolize 1. 2. Defendant's market share must typically be around 30% 2. 2. Elements 1. Stability of market over time. Conspiracy 1. 64% might 2. EI Du Pont de Nemours 1956) . through superior skill. Prove that the defendant has monopoly power 1. considered in terms of the ability to raise market prices or exclude competition (US v. 33% isnt. (do this also during the pendency of the trial) 3.reasonably interchangeable substitutes are traded. foresight or industry rather than wrongful conduct. 3. is irrelevant. Wow. it will be covered by section 1 2. 1. and show that: 1. 2. Defendant will show it doesnt have this power by enlarging the relevant market or by showing that it cannot raise the market price. 3. because more times than not. degree of barriers to entry. Alcoa says 63% definitely is not. US v. exclusionary or predatory conduct 1. an overt act by one of the parties in furtherance of the conspiracy 1. when new or existing competitors would have eroded that power. A substantial amount of commerce was affected or would be affected by . Finally the defendant will try to show that it gained its position lawfully. currently all of this is similar to the section balancing test. Hecht v. OR 3. 1. (sounds like the criminal law standard) 3. Other determining factors 1. The plaintiff must establish that the defendant has the specific intent to achieve a monopoly and that the wrongful conduct has a dangerous probability of success. only to turn on that victorious competitor and intend to put them out of business/ involuntary elimination of competitors (Alcoa) 2. maintenance of market share despite an inferior product. Typically 70% market share is considered monopoly power. ProFootball.
the planned conduct 4. Well all know that this is bull shit. In one of the worst fucking written opinions of all time. HELD: The baseball exception applies only to those aspects of baseball.. v. but not broadcasters] 1. 7. 2.. The business of baseball. however it has an exemption from the Anti-trust law. Inc. specific intent on the agreeing parties to monopolize 6.baseball does interstate commerce. clubs and players which are integral to the sport and not to related activities which merely enhance its commercial success. Henderson Broadcasting Corp. Congress has considered the issue several times. Though. by crossing state lines. the exemption was limited only to baseball and no other sports. 2. Federal Baseball Club of Baltimore. Theres farm systems. in Haywood. 1. ML of Professional Baseball Clubs(1922) 1. equipment etc.which is an exception and anomaly. Toolson affirms Federal Baseball Clubs on the grounds of Federal Baseball Clubs. Post Flood Exemption. New York Yankees. not the essential thing and things which are not commerce do not become so. Baseball Cards (Fleer Corp. Rodovich and International Boxing. and have declined to remove the exemption. v. Broadcasting 2. Henderson Broadcasting alleges that has (the Astros) and KENR entered into a conspiracy to divide and allocate advertising and audience territories and to eliminate competition for advertising revenue and listening audiences thus imposing horizontal restraints. 1. is exhibitions. Toolson v. Chandler: The equities are with the victims of the reserve clause. Flood v. travel. Curt Flood is an OF for the Cardinals. At this time in the MLB each contract maintains a clause which allows the team to renew a contract each year continually. which means that it is not congress' intent to have these law apply to baseball. v. But hey. players taken from other states and countries. 2. we'll take it. This is called the reserve clause. The Baseball Exemption 1. Plus the fact that Congress had not addressed the issue by law. such as leagues. Houston Sports Ass'n. (!982) [biz. not related to production baseball is not a subject of commerce. and it created a system where players could not enter a free player market. food. Personal effort. 1. brief albeit legitimate argument the court asserts is that because of Federal Baseball Clubs. DISSENTING: J. Burton: UH. HELD: Baseball is a business engaged in interstate commerce. 3. baseball had operated under the reasonable assumption that had this exemption. Inc (1953) 1. No Exception in: 1. radio. television. They were essentially team property. 1. Interstate transport is merely incidental. 3. Topps) . Inc. The one. Kuhn (1972) 1. yet Pre-Curt Flood Act 1. and it would be unfair to say that they violated the law when the court said they didnt. 1. Dissent: Douglas: Gardella v. stop kidding yourselves.
Kapp v. Butterworth v. as the AG of Florida issued civil anti-trust investigative demands on the NL. extends only to the reserve system and matters of league structure. This case comes from Piazza. . 2. strike. 1. Partially overturns Federal Baseball.”the Crist court ultimately adopted the district court’s interpretation of the relevant authority. might be covered by the exception. Piazza and the effect Flood had on Federal Ballclubs. Piazza v. 1. MLB v. looking into the combination in restraint of trade in connection with the sale and purchase of the SF franchise. 3. Crist (11th Cir 2003) [biz of baseball] 1. Vincent Piazza and his group had a deal to purchase the SF Giants for 115 mil. Therefore. 1. 1. This is the appeal of the Butterworth case. Personal question: How come the league still gets to approve ownership? 3. In this oddly decided case. 2. only the Reserve system is subject to exemption from the anti-trust law. MLB stepped in. ended the deal and prevented the move. Flood still may have broader antitrust exemption authority that does not make it totally obsolete – this doesn’t address franchise relocation. The NL moved to quash the investigative demands based on its exemption. HELD: Based on. 1. the exception does not apply as it pertains to the purchase of teams and must be subjected to Rule of Reason analysis. 1. 1. Toolson. Piazza sues for violation of Sherman. NFL (1974) 1. jointly agree to lobby Congress to overturn baseball’s antitrust exception. Basically applies antitrust to baseball with regard to labor. finding that the exemption broadly protected the “business of baseball. Crist succeeded Butterworth as AG. Anti-Trust and Sports: Eligibility. 8. which require result stare decisis (because of the holding in Flood). concluding that “the number of clubs. Rookies. Gave MLB players the same rights as other athletes to sue in antitrust when the suit is related to labor relations. after which he wanted to move them to Tampa Bay. however. Veterans and Free Agency 1. Noting that the scope of the baseball exemption had been “the subject of extensive litigation over the years. NL of Professional Baseball Clubs (1994)[reserve] 1. etc (Piazza issue) – just gives players the right to file antitrust suit. and their organization into leagues for the purpose of playing scheduled games. Although the court held that the exemption was not unlimited – in particular stating that the “exemption has not been held to immunize the dealings between professional baseball clubs and third parties”– the court nevertheless believed it clear that the proposed contraction fell within the scope of the exemption. MLB (1993) [reserve/some business] 1. The denial of the relocation of the team. Player Restraints and application of the Per Se Rule 1. 9. Concessions 2.3. HELD: Federal Baseball and it's progeny. and Flood w/r/t players. because this has profound effects on the structure of the league. Curt Flood Act of 1998 1. Done after collusion (see later).” VII. are basic elements of the production of major league baseball games. the court looked at the per se rules and the charges that QB Kapp made against the NFL.
finding that per se violations are inappropriate given the special differences in the business of sports. The NFL defended on the grounds that it was necessary for competitive balance. Again tested the use of per se violations and the Rozelle Rule. However. Player Restraints: Limitations on Participation 1. 1. that did not stop the court from deciding to immediately strike down certain portions of the NFL rules and contract so patently unreasonable that there is no genuine issue for trial (which sounds sort of like a per se rule to me. that player remains reserved and unable to seek a contract with another team is equivalent to a perpetual boycott (which in normal situations is a per se violation) 3. it was unlimited in duration and provided no procedural safe guards. 1. agreed to by the teams or the commissioner. this rule. This court actually distinguishes sports from real life. which provided that when a player at the end of his contract term signs with another team his previous team gets a ransom. Molinas v. 2. 2. 1. the degree of these rules were. 2. requiring that even when a team makes no offer or no sufficient offer. however.2. but given the way that team sports work. Kapp's refusal to sign the contract was okay. One man rule. HELD: The per se rule. Application of the per se rule really only makes sense in an environment where the dynamic is not like this. the rule by which the commissioner has final decision which is unappealable is just as unreasonable because it goes against the Federal Arbitration Act. Court did not buy that shiz. the actions themselves are not per se illegal. This is restrictive because even while not under contract a player's ability to operate in a free market is almost non existent. The Rozelle rule was highly anti-competitive because it effectively eradicating free agent offers. 2. The restriction applied to everyone not just the top free agents.) 1. The Option rule is not so unreasonable so as to be decided by summary judgment. Draft Rule. There are other less restrictive ways to maintain the the competitve nature of the league. NBA (1961) 1. a restriction on the talent could be allowable. 1. Jack Molinas was a player for the Detroit Pistons. NFL (8th Cir. Rozelle Rule. Court asked for a legitimate business purpose and whether there is a less restrictive means to accomplish that purpose. due to the differences between businesses and sport should not be applied so readily. though only draft picks are awarded or created. where your business would fail without equally competent competition. involving type A and B free agents. We can see here how the court says this rule is not okay. 2. This rule operates as a perpetual restraint on player movement. 1976) 1. Note: that baseball has a compensation system. because it would have bound him to such illegal terms in the constitution and by laws. 5. in fact you want them to be close to equally as competitive as your team is (studies indicate that 60-40 is nice). One of these differences is. 4. Mackey v. He admitted to gambling on his . in sports economics parlance Louis-Schmelling Complex. Therefore there is no interest in putting other teams in your league out of business.
The court held that Clarett’s disagreement with the criteria to enter the draft established by the employer and labor union could only be remedied through labor law. it wont be the last time): A combination of actors. The court of appeals held the eligibility rules are immune from antitrust scrutiny under non-statutory labor exceptions and can only be scrutinized under labor law. North American Soccer League v. The issue is whether the NFL’s eligibility rule is exempt from antitrust law 2. The NFL began limiting amateur entrance into the draft in 1925 to prevent injury to young and immature athletes. Here there is no evidence. not antitrust. such as the NASL. 1. must establish a clear causal connection between the violation alleged and the injuries suffered. The 2ndCircuit reversed and remanded the case with instruction to enter judgment in favor of the NFL. NFL Age requirements state you must be 3 years out of high school in order to be eligible for the draft. Single Entity argument rejected (get used to it boys. As to the the refusal to reinstate. NFL (1981) 1. Clarrett v. behaving a joint venture is still a combination. but necessary for the survival of the league. The eligibility rules were located in the NFL Constitution and Bylaws. The issue arises in this case because the NFL players union and the NFL Players Association (NFLPA) collective bargaining agreement at the time did not include the eligibility rules. NFL (2nd Cir 2004) 1. Clarett claimed this reduced the competitive market of professional football and therefore violated antitrust law. 1. The reserve clause issue: In order for a private plaintiff in a civil anti-trust suit to recover. He was indefinitely suspended. Inter-Sport Competition and Cross-Ownership Bans 1. The Court held no antitrust exemption would be made. The relationship between the NFLPA and the NFL created by the collective bargaining agreement prohibits teams from negotiating directly with players. Maurice Clarrett was a talented albeit bat shit crazy RB at THE Ohio State University. but did not. NFL passes amendment to by-laws mandating that owners who cross own or receive income from ownership in another competing league. Such a loophole would allow league members to escape antitrust responsibility for any restraint they entered into to enhance league competition to outweigh the anti- . HELD 1. must divest ownership of said team. Anti-Trust and Sports: Restraints on Owners and Leagues 1. the court held that a rule and corresponding contract clause providing for the suspension of those who place wagers on games in which they are participating seems not only reasonable. During his suspension he went to Brooklyn Law School where he learned to sue people. nor is it alleged that Molinas' injury results or stems from the reserve clause 2. Holding 1. VIII. he sued the NBA because the NBA reserve clause was in violation of section 1 and the NBA's refusal to reinstate him (and his suspension without notice) constituted a similar violation. 2. 2. The court of appeals reasoned that if the NFLPA wanted to change the eligibility rules they could have brought the issue to the table during bargaining. and surely enough. The 2nd Circuit reasoned that the primary objective of anti-trust legislation is to preserve business competition.team.
hire their own coaches. Confidential information is protected by the ban 1. which set their own prices. 7. Per Se rule is also rejected. 2. the clubs are not separate businesses and each has its own separate value 4. however in the 1980 vote failed. NFL clubs compete with each other for talent on and off the field. 1) an agreement 2) intended to cause harm or unreasonably restrain trade 3)actual injury to competition. there has been cross ownership for a while and the NFL is still dominant. In response to legal threats the league changed the rule to a 3/4th super majority. and no team has been ran less efficiently because of it. where cross ownership prohibitions where violative of section 1 even with the admission that cooperation between the teams was necessary. Court calls bull shit again. The NFL hasnt been able to show evidence of the type of information they are referring (duh! Its confidential!) 2.3 required a 100% vote to approve relocations within another team's territory. 1978. 1. yet in the past they have violated section 1 2. 1. Single Entity Issue 1. largely in part to the restrictive approval policies established by the leagues. Franchise Relocation 1. Court says that this type of behavior does not rise to the level of badness that would warrant per se ruling without further analysis. which is still in the LA territory. 2. Even though revenues are shared and divided there is still a huge difference in profits and losses from team to team. rule 4. Los Angeles Memorial Coliseum Comm'n v. NFL claims the market is quite large. Court says NAH BRAH. limiting market or customer areas 3. . 2. LAMCC and the Raiders brought this action. 2. with the LA Coliseum empty. Price Fixing 2. Pro-competitive effects 1. Citing NASL v. it and the league looked for a new resident. Multiple corporations operate as a single entity when corporate policies are set by one individual or by a parent corporation. 1. Other organizations just as unitary have been found to be in violation 3. any financier can try. The LA Rams. the ability to purchase a franchise is limited to a narrow group of eligible purchasers. Al Davis and his Oakland Raiders step in and decide they wanted to move from Oakland to LA. NFL. Basic Elements 1. management and players. The ban prevents CoI's 1. moved to Anaheim. and some teams like the Jets and Giants will compete for fans and fan dollars. Each team jointly creates policy 6. Threshold requirement 1. 1. Granting the NFL Single Entity status would be to immunize them from all antitrust liability. NFL (1984) 1.competitive effects. 5. 4. Rule of Reason 1. Alternative: remove cross-owners from broadcasting rights committee.
3 is on its surface an agreement to control and/or prevent competition among NFL teams via territorial divisions. Rule 4. Reasonableness of Rule 4. no foreseeable loss of league revenues. it could be left up to the local governments to address this issue themselves via lease agreements which should in practice last long enough to allow them to recover. that while these are pretty worthwhile reasons.1. 6. There is the additional joint marketing issue. rule 4. 4. Regulation of private profit is best left to the market. 2. In regard to the joint marketing reason. there are far less restrictive ones which could carry out the same goals. There was no showing that the move would harm the competition of the league. no facility problems.3 encourages stability which prevents one team from gaining an unfair advantage on the field. (1987) 1. . 2.3 effected competition among NFL teams and among stadia. Inc. the league must be able to have some control over team placements to ensure football is popular in many markets. 3. 1. Though the court states the difficulty that sport presents in this area. the issue of whether or not a league rule prohibiting the relocation of a team is a fact specific issue. Economic arguments should be made. Court agrees that territorial divisions are ancillary to football. Territories foster fan loyalty which promotes traditional rivalries. In 1978 Davis suggested that rule 4. The court HELD. Essentially states that the holding in Raiders I (above). which effectively removes the per se label from certain acts where a restraint on trade may be valid if they are subordinate and collateral to another legitimate transaction necessary to make that transaction effective. the current rule really just means that a team needs only 7 friendly votes to block a move regardless of whether a market can support another team or not. Relevant market 1. 1. is not a rule. 2. which means the rule of reason must be applied. which contribute to attendance and television viewing. Agreement via NFL constitution and by-laws 2. 2. The last NFL argument is that the ability to block moves like this allows local governments to recover their expenditures (they invest tons in stadia etc). that in order to properly exercise the rights which come with their ability to collectively negotiate the TV rights. 1. SDC Basketball Club. NFL argued that the ancillary restraint doctrine applies here. Rather. NBA v. While it does not seem extremely clear from the opinion I think that the court decided that 4. No schedule problems. As to the local government reason.3 1.3 be replaced by objective guidelines rather than a subjective voting measure. 3. 5. 2. 1. There was evidence that the commissioner and other owners hated Al Davis for being a Maverick (lol) and the vote could have been motivated by animosity.
[whereas the other] cases a league's refusal to approve a given sale transaction or new team merely prevented outsiders from joining the league.. Unity of Interests 2. He bought all of the stock back. but not the general proposition that no policy regarding ownership can injure competition. Corporations and their wholly owned subsidiary are a single enterprise for the purposes of section 1. regional balance. Sullivan owned the Patriots and it was partially publicly traded. to exclude from the league owners who may be more effective . Sullivan v. Indendence Tube Corp 1. NFL (1994) 1. 3. 1. He sued claiming that the policy was in violation of Sherman. Those same cases left open the possibility that competition for ownership was a legitimate market.. The rule must be closely tailored to the business objectives 3. and television revenues. Court rejects the NFL's argument that there was no injury to competition 1. Then he was in financial trouble and he wanted to sell a minority interest in the team in stock. 3. Then the AFL merged with the NFL.. but did not limit competition between the teams themselves. Market: nationwide market for the sale and purchase of ownership interests in the NFL member clubs. The court rejected the NFL's claim that there was insufficient evidence of harm to competition. 1. economic projections. 3.. merely 8. While there is case law to backup the idea that the league can refuse approval to individual transfers of team ownership. This argument rests on the relevant market 1. This leads also to the rejection of the single entity argument again. NFL denies that NFL teams compete for the sale of their ownership interests. 1. Rozelle. 2. Sullivan's expert: NFL exercises monopoly power in preventing certain people from owning a franchise. 4. 1. Court declines to find that as a matter of law the NFL teams do not compete against each other. 1. “[This policy] restricts competition between clubs for the sale of their ownership interests. Though the court felt that the evidence was “rather thin” it was not too thin to support a finding for Sullivan. Do I really need to mention that sports teams do this.. 2. 1. NE. The NFL's policy had actual harmful effect on the competition in this market. Sullivan sold the team for $87 million. Summary judgment will be hard to obtain. which was a low price. 1.2. whether any of the defendants has pursued interests diverse from those of the cooperative itself. He asked other owners to alter the rule to allow him to do it. being a dick. which had an unwritten policy forbidding public ownership of teams. Never asking for a vote. Transfer of Ownership 1. A policy which restricts the buying and selling of teams injures competition in that market. said he was not in favor of the proposal and that league support was very dubious. There should be an objective set of criteria such as population. Copperweld v. and enables a group of owners. 1.” 2. playing facilities. in particular.
The Bulls wanted to broadcast more of their games over WGN. Oh. NBA (1996) 1. 1. Equal involvement defense. Even people would just buy stock for investment purposes. 2. It contributes to the NFL's ability to function as an effective league. This is not enough to get around the Rule of Reason. and that such rules controlling who joins a joint venture and the policy in question constitutes an ancillary rule. the NBA contends that antitrust laws allow it to fix a lower number (15 to 20) and collect the tax proposed. Investors short term interests are different from the long term interests of the league and team ownership. Proving that the policy reduces the available output of ownership interests. 2. such an ancillary rule can still violate section1. these statements imply that if allowed there would be competition for ownership of teams. If he didnt request it for reasons other than the policy then there is no case 3.competitors than they themselves are. 2. The NBA signed a contract that transferred all broadcast rights to NBC. not just for the purpose of owning a sports team 3. 1. The failure to request a vote can be a potentially dispositive issue in the case. Again. such as preventing majority shares being sold. Need to prove that the antitrust violation was a material cause not the sole cause. Chicago wants to broadcast 41 games per year over WGN. Sullivan never asked for a vote. PS. the balancing test instruction. 6. 5. they did. the evidence was weak but strong enough to support the verdict. The court accepts this notion. UH. an instruction on this defense should have been issued to the jury because there was sufficient evidence that Sullivan was “substantially responsible for maintaining or effectuating the policy” because he was on the joint committee during the merger which decided the rules. 1. there was evidence it was rejected any way. 1. 3. 2. Ancillary Benefits 1. The restraint is ancillary to the functioning of such a joint activity. Since 1991 the Bulls and WGN have been allowed by injunction to broadcast 25 to 30 games per year. 4. 2. a television superstation carried nationally on cable. 1. 2. Injury in Fact 1. 3. the jury needs to be instructed to consider the pro-competitive justifications. then make a salary cap. There are less restrictive means to achieve this goal. Chicago Professional Sports LP v. The district court made a 30 game allowance permanent and held the NBA’s fee excessive. wait. This policy restricts the market for investment capital 1. TRIAL ERRORS 1. Even though. Other owners say that this is okay because if big corporations were allowed to buy teams then they would funnel massive amounts of money into the team and make it unfair. so that a singular majority owner controls the dividends and so forth. NBC only shows 26 games during the regular season and the network contract allows the league and its teams to .
complete unity of interest or absolute right to control. League-wide sharing of revenue does not support a notion of unity of interest. the teams of the league have competing interests. The Ninth Circuit held that district court properly condemned the NBA’ssuperstation rule under the rule of reason analysis because (a) the league did not argue that it should be treated as a single entity and (b) the anti-freeriding justification for the superstation rule failed because a fee collected on nationally telecast games would compensate other teams for the value of their contributions to the game being broadcasted. NBA (1992). Even if the revenue sharing portion were enough. 2. The Ninth Circuit decided that when acting in the broadcast market the NBA is closer to a single firm than to a group of independent firms. 3. the Bulls and WGN must respect the league’s limitations on the maximum number of superstation telecasts. directors and employees of a single firm engage in unitary. Copperweld 1. Wholly owned subs. 1. This is called the Single Entity Defense. 1. Why Copperweld really doesnt help the sports leagues 1. according to Copperweld. In fact the constitution and by laws allow for teams to withdraw from the NFL so that they can join other leagues or form one. Each team has the right to broadcast all 82 of its regular season games unless NBC casts that game. the defense was considered dead. Copperweld generally requires complete ownership. NFL (1984) 2. conduct 2. However Copperweld Corp v. There is no sharing of costs and there are wide gaps in profitability from team to team. not joint. Officers. THE SINGLE ENTITY DEFENSE 1. does not involve a sudden joining of economic resources that had previously served different interests. especially for the NFL. the teams each control their teams as they see fit. Such as the central licensing units of professional sports leagues? 3. 4. The league has no power to run the teams absent any extreme circumstances (see MLB purchasing the Montreal Expos and moving to WAS).permit telecasts at other times. Most importantly however was the finding that corporations and their wholly owned subsidiaries are single entities. Although. They have a complete unity of interest 2.” . 4. Because of the multiple actors requirement of section 1 in Sherman. 1. therefore. it fails on the fact that Copperweld makes direct reference to the “joining of economic reasources which have previously served different interests. 3. of the same corp. The league does not have the absolute right to control. Independence Tube Corp (1984) reignited the dying flame. After the decision in NASL and Raiders I (LA Coliseum). the NBA may be treated as a single firm in that it produces a single product. MidSouth Grizzlies v. 1. Teams are separate businesses. 2. Just because they share money does not mean they are incapable of consipiracy. linked by their constitution and by laws but not owned commonly. may be treated the same. Corporations and it's unincorporated divisions also engage in unitary conduct. one real great way to get around liability would be to convince a court that you are not multiple actors because you are really a single economic actor. Chicago Professional Sports LP v. 3.
to a firm making hats the colts and the saints are two potentially competing suppliers of valuable trademarks. 5. and they choose to pool them in NFLP.” he added. for gate and player/on field personnel. And its a VERY well known one at that. PS I have never seen a text shit all over a judge like this in my life. misapplying legal standards.” 5. “Competitors. Teams with more valuable IP take less money at the expense of maintaining this competition. I agree with just half of this. 1. NASL v. 6. but that does not mean that cooperation amongst NFL teams is immune from [Sherman Act] scrutiny. A K. 3. Pro-Football (1996): teams compete for fans. Product Market and Joint Action 1. 5. “To license their separately owned trademarks collectively and to only one vendor are decisions that deprive the marketplace of independent centers of decision making. get more money to remain competitive. ” ‘cannot simply get around’ antitrust liability by acting ‘through a third-party intermediary or ‘joint venture. 2. NFL: the financial performance of each team is related to the others but does not necessarily rise and fall with that of the others. “substance over form” 4.whether it joins together separate decision makers. the revenue is split evenly. the NFL produces NFL football.” 2. Members of any cartel could insist that their cooperation is necessary to produce the ‘cartel product’ and compete with other products. By 1991 the defense was so dead that the NBA didnt even mention it in Chi pro sports LP (1992) (Bulls I) 6.he certainly seemed to favor it. NFL: whether any defendants had pursued interests diverse from those of the cooperative itself. Just because the teams need each other to exist. ignoring the treatises he himself cited to.4. NFL (2010) 1. I see how each team owns a valuable commodity in its own IP rights. providing no real standard and waffling on whether a per se rule or rule of reason should be used. “NFL teams do not possess either the unitary decision making quality or the single aggregation of economic power characteristic of independent action. 1. in Bulls II. “The key is. When each team licenses its IP it is acting in their own interest not in the interests of the league. NFLP's licensing decsions are made by the 32 separate entities which own the corporation and the rights that they . Honestly. Brown v. Of course. 1. NFLP is liable to section 1 attacks as well. Decision by JPS 1. which is what the league needs to survive.. 2. Though. Judge Easterbrook wrote a shitty fucking decision. combo or conspiracy that is necessary or useful to a joint venture is still just that: a combo etc. and held that there needs to be a further investigation as to whether the NBA was a single entity. But.” 4. so that the league teams with less valuable IP.. does not mean that they are in unity of interests. quoting colleague Justice Sonia Sotomayor when she was a judge on the Second Circuit Court. American Needle v.’ ” 3. and it chooses which one company gets the rights. “defining the product as ‘NFL football’ puts the cart before the horse. In the market for IP 1. Sullivan v.
" 1. any hockey operations or any NHL activity. among other things. 4) and New Media. concluding . in relevant part: “MSG forever releases and discharges [the NHL] from any and all claims…upon any legal or equitable theory [which] exist as of the date of the execution…relating to. holding that MSG had failed to demonstrate a likelihood of success or a sufficiently serious question going to the merits. merchandising rights. were barred by the doctrine of laches). and advertising. the intrafirm agreements are merely a formalistic shell for concerted action. In holding that the release does not violate public policy. MSG’s injunction challenged only the NHL’s New Media Strategy. the performance. Each team takes its individual economic benefits apart from the NFLP profits as a result of the decisions they make for NFLP 3. marks. and broadcast rights. Second. when the parties of the agreement are acting on interests separate from those of the firm itself . the NHL has become an illegal cartel. the NHL raised two primary arguments. all non-New Media claims) were barred by a release in a Consent Agreement signed by MSG in 2005 (or. 2. were barred by the doctrine of laches). including. The Complaint filed by MSG. Anti-Trust: League Wide Media Contracts and Web Content 1. the NHL argued that all claims relating to the first three categories (ie. such commonality exists in every cartel. The purported anticompetitive conduct cited by Madison Square Garden includes allegations that the NHL teams imposed a series of rules limiting individual team control over their websites. 2. the district court denied MSG's request for a preliminary injunction against the NHL’s effort to ban the Rangers from operating an independent website. In its motion to dismiss. 2) broadcasting and streaming. broadcasting. 3) advertising and sponsorship. the NHL claimed that it constitutes a “single entity when deciding how to make and sell what only the venture can create” and thus is incapable of violating Section 1 of the Sherman Act (or. The complaint further alleges that. finding that they were released pursuant to the Consent Agreement (and. NFLP is merely an instrumentality of the teams because the business interests will often coincide with that of the business. 2. that MSG had failed to allege antitrust injury).” Judge Preska held that the language of the release encompassed MSG’s non-New Media claims and that enforcement of the release would not violate public policy. or arising from. in the alternative. 1. was much broader and challenged NHL restraints relating to four different categories: 1) merchandising and licensing. the migration of the MSG-owned Rangers’ website to an NHLoperated server. in the alternative." and that such "broad collective control over the competitive activities of the independent [hockey] business is inconsistent with federal and New York state antitrust laws. dashboard sales. licensing rights. NHL (2007) 1. without limitation. IX. "by seeking to control the competitive activities of independent business in ways that are not necessary to the functioning of the [NHL] joint venture. 1. which required. presentation or exploitation of any hockey game…. The Consent Agreement reads. MSG v. Judge Preska dismissed all of the non-New Media claims. Judge Preska essentially rejected the antitrust challenge to NHL’s various restrictions regarding merchandising. in the alternative. Though these are decisions made inside one corporation. however. First.market.
Judge Preska noted that “there is no evidence in the record on the crucial question of market definition. “Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor.. But since the cap was part of the collective bargaining agreement negotiated in good faith and agreed-to by the union and management.that the NHL’s “undisputed legitimacy diminishes the public policy concerns compared to those in the case of a Section 1 conspiracy whose very existence is unlawful. Although Judge Preska recognized that “[w]hat is essentially the same [single entity] argument has been rejected in a similar case by the Court of Appeals. instituted for the purposes of mutual help.. and thus was not barred by the general release. hours and working conditions that the union's successful attempt to obtain the provision is through bona fide arms-length bargaining in pursuit of it's own labor union policies. as in the case of a monopoly or price-fixing conspiracy. 6 1. Non-Statutory Exemption 1. is violent or constitutes a secondary strike..” Judge Preska concluded that the “Court need not—and will not—resolve the question at this juncture [because] the arguments advanced by the NHL in favor of single entity status require examining facts outside the pleadings.” and that “[m]ost other Courts that have taken up the issue have reached the same conclusion. . the cap cannot attacked in court as a violation of antitrust. 1. J. (1965) 1. let alone the inquiry into how the NHL actually operates as an economic actor in that market. Goldberg Dissenting: We should not carve away the power to collectively bargain be creating ways to open them up to the antitrust laws. The New Media Strategy.organizations. Basically. 2. however. Clarett v. a cap can be a violation of the antitrust law. Clayton 6 and 20 were specifically designed to avoid such a situation. 1. 3. and not at the behest of or in combination with non-labor groups it is exempt from the Sherman Act.” X. will damage property.. United Mine Workers of America v.” 3. 2. Clayton sec 20 1. The exemption of labor organizations from antitrust laws does not extend to those situations where a union conspires with non-labor organizations with the intent to diminish competition in a particular industry by embodying industry wide standard requirements in a CBA with only one set of employers.” In particular. Pennington (1965) 1. Where a contract provision is so intimately related to wages.” 2. Clayton sec. Jewel Tea Co. did not exist at the time the Consent Agreement was signed. No injunctions shall be granted in case between employer and employee involving or growing out of a dispute concerning terms or conditions of employment. Anti-trust and Sports: The Labor Exemption 1. That means that the provisions of the agreement cannot be attacked as collusive or anti-competitive. In pure antitrust terms. NFL (2004) 1.” and “therefore the NHL’s arguments in favor of dismissal cannot be resolved at the pleading stage. any union-management agreement that was a product of good faith negotiation will receive protection from the antitrust laws. Unless that strike is illegal. Judge Preska therefore had to determine if the single entity defense barred MSG’s New Media Strategy Section 1 antitrust claims. Amalgated Meat Cutters v. Say that a salary cap is agreed to by a union and management.
1987 NFL strike ended. so no antitrust liability. Mackey v. The League offered the union to pay them $1. Which creates a hairy situation where an employer institutes what would be a rule in violation of sherman in the collective bargaining arena without the consent of the union. because of the way that Labor law works is that once the CBA terminates the status quo is maintained. the employer can impose his last good faith offer. If impasse were to end the relationship then it would be too easy to artificially create impasse. Meaning I was correct earlier insofar as so long as there is a section 9a relationship. I think. 3. 4. This case deals with the addition of developmental practice squads in the NFL. if the union however were to disband. sued over free agency. Due to impasse. 1. to requiring a relationship to exist. 1. Court assumed that Rozelle Rule wasn’t part of arm’s length bargaining. The problem with this could be that when impasse happens. 3-prong Test: 1. 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 2. Powell v. J Breyer: Labor laws cannot work properly if at any pt in process can use . Judge says as long as the parties have a collective bargaining relationship. Inc (1996) 1. which opened it to antitrust attacks and was found to be anti-competitive as seen earlier. Which flies in the face of the policy we are going for. Brown v. labor law governs. Union rejects this offer and they bargain to impasse. the league unilaterally imposed that offer. Pro-Football. Connell Construction v. Federal labor policy is implicated sufficiently to prevail only where the agreement sought to be exempted concerns a mandatory subject of bargaining 3. then there would be issues. 2. even if implemented unilaterally it is not subject to antitrust laws 2. Though. NFL (1976) 1. union played without a new contract. If challenged restraint regulated by governing labor law then antitrust laws do not apply Unilaterally imposing terms in “impasse” common feature in labor law 3.. Local 100 1. An agreement outside of a CB relationship and not restricted to a particular job site which obliges a contractor to subcontract work only to union firms may be the basis for antitrust suits. NFL (1989) 1. this is really a condition for bargaining. My assumption is. This extends the Mackey prong from requiring an agreement to exist. 1. The commissioner tries to use the labor exemption to enforce the Rozelle rule.000 per week. (Of course when this happens there will be a strike or lock out). and open the league up to antitrust litigation (or the union) 1. Does the labor exemption apply? 1. 3. the labor exemption applies. 2. the labor policy favoring collective bargaining may potentially be given preeminence over the antitrust laws where the restraint on trade primarily affects only the parties to the CBA 2. Labor Exemption when CBA expires 1.3.
NLRB 1. retention. Clarett v. but it is WIDE open. dispute resolution 4. On a thursday the union made its unconditional request for reinstatement. 1. in the inherent ones. . Clarett's argument completely neglects that labor policy exists 2. 1.antitrust law… 4. which is just mildly ridiculous to say. the court determined that it was still the burden of the defendant to prove it's legitimate business motives (in the comparatively slight cases such a motive can be defeated only by discriminatory intent. 9(a) establishes that the NLRB determines the unit 2. The existence of joint employment relationship depends on the control than another employer exercises over another employer. and therefore his employment with the NFL would be subject to a union agreement which states that he is unqualified to play in the NFL until he is 3 years removed from HS. When might the players ever again resort to antitrust laws? 1. player discipline 2. If Union in existence (collective bargaining relationship in existence) will be governed exclusively by labor law & antitrust law will not apply 5. North American Soccer League v. NASL has significant control to effectuate labor policy 1. 1. termination of players 2. Great Dane Trailers (where GDT made a 7/1 deadline to return to get benefits when the union made its request for reinstatement on 7/15)(inherent as opposed to comparatively slight). 1. eligible to play and paid for games that week. Sup Ct said: still possible only if restraint at issue is sufficiently distant in time & in circumstances from the collective bargaining process that a rule permitting antitrust intervention would not significantly interfere w/ that process 4. the motive can be defeated because of the nature of the act itself). Labor Law and Sports: Collective Bargaining and Arbitration 1. A unit is typically reasonable if they share a community of interests. 1. selection. Even though this is similar to the inherently destructive acts taken in NLRB v. XI. NFL Management Council and NFLPA (1992) 1. and in terms of judicial review there is an arbitrary and capricious standard. 2. The NFL argued it made the rule in order to protect players from injury and keep them in game shape as well as to prevent mismatches. This is an appropriate bargaining unit issue. NASLPA in its petition for recognition included all NASL players in the bargaining unit. 2. However the court called BS because players who hold out for better contracts and miss time are not held to similar requirement. only the players who returned by the wednesday deadline were fully reinstated. For the NFL to negotiate with Clarett would be an ULP. The NLRB found that the NSAL teams were joint employers and therefore this type of bargaining is okay (multiemployer bargaining). NFLMC. individual players contracts 3. NFL (2004) Again 1. instituted a reporting deadline for strikers for a wednesday to eligible for games and payment. 2. 9(b) provides some of the basic outlines. and ordered an election including only the American players (ie not the Canadian teams) because of the extent of NLRB jurisdiction. The standard for determining if a bargaining unit is appropriate is that the unit must be reasonable.
no free agent signed with a team other than their current team unless that team declared that they were not interested in retaining that player. Morio v.3. This was a violation of 8(a)(3) and 8(a)(1) Silverman v. Saftey did not preclude reinstatement in the 1982 strike. 5.. 3. 97% of the contracts were negotiated after the NLRB certification of the union. The MLBPA filed for arbitration to greive the issue. The NASL was making unilateral changes in the conditions of employment. However. MLB Player Relations Comm. 6. Administrative burdens was a bad excuse too. 2. Silverman v. This is a refusal to furnish information case 2. Where a representative of the employer outside of the realm of collective bargaining makes claims about not being able to financially accede to the demands of the union the NLRB may not require that the employer reveal it's financial statements to the union. This is about by-passing the bargaining representative. Because the owners outside of the negotiation have no power in said negotiation there statements as to the condition of the financials does not mean as much as when those who are bargaining say that financials are not the reason for their position. In the 1984 offseason there was plenty of free agent signing. The MLBPA was bargaining with the MLBPRC. The MLBPA requested financial data to prove the claim . 5. and then other owners and the commissioner said that the salaries of players was making the situation tough and several teams could be put into bankruptcy. which is also an 8a5. 1. the MLBRC refused claiming financial hardship was not the reason for difficulty. 1. 1. But in the 1985 offseason. . 1. The fact that NASL was appealing certification does not relieve them of their duty to bargain in good faith. MLB PRC (1995) 1. NASL (1980) 1. 4. NLRB v. yeah thats the reason. In the Matter of Arbitration Between MLBPA and the 26 MLB Clubs (1986) 1. they would have to present their financial documents. MLB changes (elimination of salary arbitration and anti-collusion terms declaring impasse) violate the duty of good faith in bargaining. They claimed that they had bad experiences with FA's and would rather develop from within. the NASL continued to negotiate individual contracts. After a union has been certified the NLRB can prevent the enforcement of unilateral changes made by the league. Katz: it is an 8a5 to undercut the union by entering into individual contracts with employees. The negotiations were tough. including individual contracts. (1981) 1. Free agency and salary arbitration are mandatory subjects. 2. In 1978 the NASLPA was recognized as the exclusive bargaining agent of the players in the NASL. claiming collusion in violation of Article XVIII(H) of the basic agreement (the CBA). unilateral implementation of mandatory subjects/ 8a5 8a1 2. 1. The Weds. If the PRC said that. 1. 8(a)(5) requires to bargain in good faith. 4. MLB argued that this was just an example of each member of the market individually changing their feelings as to the best and most efficient way to run their teams. 2. Deadline was only applicable to striking players and not nonstrikers who signed on Saturday before the game. Inc.
Standard from Garvey used too 3. 2. the MLB was ordered to create a $280 mil fund from which injured players could make a claim for. The District court refused to vacate the arbiter's decision. Vacate when: 1. Garvey (2001) 1. 7. 1. he appealed. arbiter misconduct in refusing to postpone the hearing where there was good cause to postpone or in refusing to hear pertinent and material evidence . 1. 3. not settle it. while Williams countered with a motion to vacate. Williams (2005) 1. award was procurred by corruption or fraud or undue means 2. 3. a retired baseball player. Steve Garvey. The Dolphins. but once the colluding began that contract was withdrawn. the commissioner told all GMs that it is dumb to sign long term contracts. Arbiter exceeded his power so far that no mutual final and definite award was made. CoA 11th Circ 1. Sorry MLB but at the GM meetings. Only when the arbiter strays from interpretation and application of the agreement does he effectively dispense his own brand of justice. Miami Dolphins Ltd. SCOTUS: Judicial review of arbitration is very limited. The arbiter found that his contract had the clause and there was no reason not to order the payment. The courts have no business weighing the merits of the grievance. The appropriate thing to do is to remand the issue. or prejudicial misbehavior. Ricky Williams gets bonuses in his contracts. the CoA reversed and remanded with instructions that the arbitration panel to enter an award for the amount Garvey claimed. Of course he must be acting within the scope of his authority. This does not fall under the narrow realm of where a court can change the decision of the arbiter. Courts are not authorized to review the arbiter’s decisions on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement. Which resulted in the colluding of teams not to sign players other than their own. Federal Arbitration Act 1. He retired midcontract. they distributed a list of all declared free agents. The arbiter denied Garvey's claim. evident partiality or corruption 3. 2. and renders his decision unenforceable. The general tone of the meeting was that signing free agents is bad. 8. 1986 and 1987. Union as the Respondent in arbitration 1. 2. HELD: The owners and MLB colluded. 1. in order for a player to claim the injury and get money from the fund he would have to prove that he had a contract offer that was repealed because of collusion. claimed that before the end of the 1985 season SD Padres owner offered him an extension through the 1989 season. The Dolphins filed to confirm the order. Judicial Response to Arbitration Process 2.2. reversed on the fact that the some of the testimony may have been false and the evidence which the arbiter found to be probably unauthentic was more than likely real. but on appeal. MLBPA v. 1. 4. Here the CoA. Of course. pursuant to his contract wanted the bonuses back. Arbitrary and capricious . As a result of the collusion of the owners in 1985. v.
enforcement is contrary to public policy 3. evinces a manifest diregard for the law 1. . which is not grounds for vacation. Though the state of FL does not enforce liquidated damages clauses so much this was not against the policy of the state because the clause can be construed as lawful and was within the arbiter's scope to interpret as such. 5. the arbiter may have misinterpreted the law a little. In the present case.2. like if you had to enforce a union security agreement in a Right to work state. 4.
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