Sports Law Outline – Martin Edel I. Role of the Commissioner ( 61-69, 86-96, 109n.5, NBA v. NBPA) 1.

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 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)

New York City is substantially involved in Yankee Stadium and leases those premises to the Yankees. The right to pursue one’s profession is a fundamental “liberty” within the meaning of the Fourteenth Amendment’s due process guarantee. ISSUE: Did the New York Yankees’ refusal to allow Ludtke access to the clubhouse violate the Equal Protection Clause and due process? 1. However. “so entwined” with an agency of the state that that agency must be deemed responsible for the private entity’s acts.” Craig v. 1.” Burton (1961). State Actor? 1. Plaitiff claiming an Equal Protection Clause violation because she was intentionally denied equal opportunity to pursue her profession as a sports reporter. “To withstand constitutional challenge…classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. state. through a private entity. The lease provision requires the Yankees to comply with all local. 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. 3. Burton (1961). The facility is devoted to public use and is maintained and improved with the use of public funds. 1. 4. 3.preserve traditional notions of decency and propriety. The Kuhn policy substantially interfered with the right of the plaintiff to pursue her profession as a sports reporter. The New York Yankees’ refusal to allow Ludtke access to the clubhouse violated the Equal Protection Clause and due process. along with the practice of refusing to allow accredited women sports reporters to enter the locker room. Disabled Athletes . The determination of whether state action as applicable was made under the Burton Standard of “sifting facts and weighing circumstances. This practice. during the World Series games. then it should be given regardless of gender. 2. could have easily been implemented. 5. and federal laws. These locker room encounters were viewed by mass audiences which included many women and children. defendants asserted their interest in protecting the privacy of the ballplayers while undressing in the locker room. 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. shows that the latter was “substantially related” only to maintaining the locker room as an all-male preserve. State action may be found where the direct perpetrator of allegedly discriminating acts is. HELD: Yes. As justification for the complete exclusion of female reporters from the clubhouse at Yankees Stadium. 14th Amendment Claim: 1. whether it be women’s access to men’s locker rooms or men’s access to women’s locker rooms. such as curtains and doors and wearing towels. 2. Accommodations. 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. Boren (1976). If any sports reporter is to have immediate access to athletes in a locker room or clubhouse setting.

1. 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. that the PGA TOUR has some legal obligation to play classic. HELD: In this situation the golf cart does NOT fundamentally alter the game of golf.privileges. They walk 5 miles which is 500 calories. PGA says.[and] is not an essential attribute of the game itself. 1. and the rules of the game of golf do not prevent golf carts. I am sure that the Framers of the Constitution. However the court also says that Title III is not limited to consumers. 3. Inc.of any place of public accommodation. HELD: It does. this is the highest level of golf and they want to incorporate the element of fatigue into the skill of stroking. If the alteration that is required would fundamentally alter the nature of such good. v.. Casey Martin (2001) 1. 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. 1.” to decide What Is Golf.. 2. Golf tournaments include lots of rest and refreshments. Art III allows limits the extent to which discrimination is not allowed. Court : 1. The PGA's rule is “based on an optional condition buried in the appendix to the rules. 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. and among the several States. however. because participation is a privilege included in the spirit of Art III. which made it difficult for him to walk a golf course during tournaments. PGA Tour. the PGA denied him that use claiming it would fundamentally alter the game of golf. fully expected . The essence of golf is shot making. PGA says.” 3. 1. Casey Martin is a golfer with a degenerative leg condition.. but Title I only extends to employees. He requested use of a golf cart. Martin paid $3. 1. Scalia DISSENTING: 1. Title III only applied to consumers and that the claim that is job related can only be brought under Title I.. 1. Issues 1. Martin is an independent contractor. If one assumes. 2.1... laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations. which is “nutritionally less than a Big Mac” 2. but the act specifically mentions golf courses as a place of public accommodation so construction does not matter. aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery.. 1. It has been rendered the solemn duty of the Supreme Court of the United States.or accommodations. Public accommodation is usually broadly construed. Whether the Americans with Disabilities Act (ADA) protects access to professional golf tournaments by a qualified entrant with a disability.000 to enter and is therefore a consumer. Court: Even so.. section III of the ADA states no individual shall be discriminated against on the basis of disability in the full and equal enjoyment. Expert: Fatigue from walking a golf course for 4 days is insignificant.

In 2005. Develop financial plans 5. desires. Money management may also be another function of the players primary agent 1. while also negotiating the terms of the agreement. slight. is yes. expertise or experience required to be an Agent. Agents are widely considered to be the one who represents the athlete in contract negotiations. TTAB ordered cancellation of Redskins mark on grounds that it was disparaging to Native Americans. 2. affect or injure by unjust comparison (referenced group standard) 2. that walking is not a “fundamental” aspect of golf. The Court ultimately concludes. or file his tax returns without bothering his client. 1. Though. Sports Agents 1. his player's needs. 2. 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. wants. IMHO. other players. 4. Inc. financial conditions and good business judgment. 2. traveling secretary. III. Personal Services 1. (1999) 1. Harjo v. the CoA overturned the TTAB because of laches. Is the mark shocking to the sense of truth.that sooner or later the paths of golf and government. various marketing campaigns 1. tax consultants. There are few rules regarding the minimum standards of competence. depreciate. Pertinent Regulations 1. Immoral or Scandalous marks 1. 1. the player's representative 1. negotiators. the agent who conforms and fulfills the needs of his client has a happy client 2. 1. decency or propriety (substantial composite of the general public standard) 2. This is an example of giving one person too much power. if given this power he could pay the athlete's bills. Agents Duties and Responsibilities 1. Laches. 3. or why there should be more or improved regulations of sports agents we need to know. why the need regulations . stock broker. would once again cross. lawyers. Needs familiarity with CBA. I think Plaintiff waited 3 months. and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question. Pro-Football. 2. Also considers athletes outside business opportunities 1. 3. Decides which opportunities are prudent and help his player's pocket and image. public relations guy etc. degrade. estate planner. and it will henceforth be the Law of the Land. endorsements. the law and the links. we learn. having you agent manage your money is ill-advised. 1. 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. Disparaging Marks 1. Does the mark dishonor by comparison with what is inferior. Agents are: 1. In order to understand the regulations.

Therefore if there were to be an agent regulation law. Requires agents to register 2. Tortious interference + other common law claims 3. Any contract made in violation of the act renders the contract void . US v. Tries to monitor the activities of sports agents 1. I'd rather a federal administrative agency exist. Honestly. Student athletes may contact lawyer to confer on contracts. The agents future income is far greater than any penalty the NCAA can impose 3. disruption of current contractual obligations 7. note that the major concern of the NCAA is to maintain the student/amateur status of its athletes. Included mail fraud claims due to letters attempting to induce the athletes to fraudulently misrepresent themselves to their schools on forms. incompetence 5. 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. 1. There are many statutes that. As an agent has said (Trope): They are rules. 1. it seems here that if the agent does something illegal there is already a law that covers it and punishes for it. 1. 3. this also lacks teeth 4. not laws and are meaningless 2. overly aggressive client reimbursement practices 6. 1. Though the athlete may lose eligibility 2. Some states have attempted to created administrative schemes to regulate the agents. The NCAA 1. excessive fees 3. representation of multiple players seeking the same employment 4. 2. The NCAA has an agent registration system. conflicts of interests 1. Walters v. but that lawyer can have no part in the negotiation of that contract. rather than have each state create a huge mess. or require registration. 1. while not aimed at agent activity. where only registered agents can contact school officials to request contact with the student athletes 1. 2. (NY included) 1.1.remember from batman?!) 1. 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. State and Federal Legislation 1. 2. approximately 34 states have adopted the UAAA. Also note that the power of the NCAA to punish is generally to punish the member institution. misappropriation of funds entrusted to the athlete. 2. It cannot do jack shit to an agent 1. Uniform Athlete Agency Act (UAAA). Income mismanagement 2. where there would be more uniform standards. Racketeer Influenced and Corrupt Organizations Act (RICO.

benefits and NFLPA regulations and other issues. Notice must be sent to the school AD within 72 hours 4. 1. So the union greatly effects what the agent does. There is also a fee ($1650)+ an annual fee 2. Wow. advertising. there is no analogous situation to the sports agent. because the union has a duty represent all members of the bargaining unit equally. Deals with solicitation. whereas his agent only wants what is best for his clients. I sorta called this earlier. Agent Abuses and Litigation 1. states that agents cannot take a negotiation fee unless the player earns more than the MLB minimum. 5. Plaintiff. . Contracts signed with Student-athletes. which must cover wages. no endorsements. 4. The plaintiff performed some of these obligations. which also includes a background check of education. Federal law and Unions so far require it. Essentially regulates much of the UAAA 5. 2. Furthermore. empowers the FTC to enforce the prohibition. I have all three (pending) 3. Agent must also pass a test on the Cap. the union negotiates the CBA. 3.this shit is a mess) 1. 1.outside of the sports agent or entertainment agent. Player's Unions 1. 3. agents must warn that the contract jeopardizes their eligibility. minimum competency and CoIs. Bitchin. MLBPA. an agent. 1. NFLPA requires an application. All of the major sports unions require agent registration (wow there is a lot of registration the NCAA. he solicited some investment advice and assisted defendant in investing a small amount of his money in buying a house. fees. hours and terms of employment. a minimum of a 4 year degree plus an MS or JD 1. State law. There is tension between the union and the agent. Congress passed in 2004. though. 4. 3. No jobs. seek endorsements and assist with off-season employment. Sports Agent Responsibility and Trust Act (SPARTA) 1. Typically unions are the employee's exclusive bargaining representative. The agent was to negotiate contracts. furnish advice on business and tax matters. Parrish (1981) 1. past jobs. NFLPA sec 6 includes a grievance procedure too and empowers the imposition of sanctions. brought an action to recover commissions that were allegedly due under an SRK. licenses. bar membership. prohibits deceptive acts or practices by agents 2. 2. An agent cannot register with the MLBPA unless a player designated that person as his agent. Bitchin.and terminates all financial liability or consideration owed the other party. criminal and civil records and involvement in sports. 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. 1. NFLPA also permits a maximum 3% of the player's salary to be paid to the agent 3. If the Agent is a lawyer then he must comply with the ABA Model Rules of Professional Conduct. 3. 1. In labor law.

3. Punitive damages can possibly awarded. before his eligibility had ran out. and that there is no per se rule regarding punitive damages in such a case. 1. After college. Fullwood was a runningback at Auburn during the late 80's. 80(b)-2(a)(11) and since he was not registered. and got it. The actions of the agent do not necessarily have to prove successful. The contract establishes the rights and responsibilities between the parties.S. or breach of confidence coupled with unjust enrichment which shocks the conscience 2. the case says that there might be a cause of action for constructive fraud. Fullwood ditches Walters and signs with Agent Kickliter. plaintiff satisfied his obligations by performing these duties in good faith. plaintiff sent his client to H & R Block. Argovitz was an agent for Sims. Walters v.C. v. 2. It only calls for a good faith effort. the agent received all $40.000 and secured a security interest in Fullwood's future career. This case is about an agent who secured a deal with a hockey club. 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. 4. 1. The defendant need not know that statement is false. Woolf (1983) 1. All of this is not allowed by the NCAA. During this time. Agents Walters ans Bloom signed him to a contract while still in college. maybe. Fullwood 1. acts or course of action where one gains an unconscionable advantage. 3. There are also significant financial differences between the USFL and the NFL. if there is recklessness or oppressive conduct are demonstrated. However. for tax advice. the contract was void. The agent must not have any conflicts of interest that might influence or affect his ability to do the best job for his client. Walters gave Fullwood appox 8.A. Player only received $185k of the $800k he was promised. Inc. Detroit off-season employment and. Constructive Fraud (multiple formulations from which the court doesnt pick) 1. Defendant alleged that his agent acted as an investment advisor under 15 U. 2. that had financial troubles. defendant alleged that plaintiff failed to perform his duties competently. including the NFL's stability. Walters claims Tortious interference with existing contractual relations . Sec. 1. 1. Plaintiff alleges a breach of fiduciary duty. 2. However. a team to which he directed his client. HELD: The investment advice was merely an incident to the primary purpose of the management contract which was to negotiate a professional contract. Brown v. the player had to renegotiate his contract. Initially the player was going to take a lesser deal with another club but the agent promised a better deal else where. aff'd 1985) 1. In short. 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. He did not inform his client of any of this. He was also partial owner of the USFL's Gamblers.000 he was owed. 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. HELD: Nothing. nor have fraudulent intent. Argovitz (1984.

Side note: Athletic Scholarships are contracts. As for the loan: Accepting a loan from unaccredited institutions or accepting money for play violates the NCAA rules. Court says: The observance of these rules is in the public interest of the citizens of NY. existence of a valid contract between P and the other party 2. ELEMENTS 1. There is a public policy exception to enforce otherwise valid agreements 1. D's knowledge of that contract 3. 2. Statistics 6. There are tons of sports contracts. Allows you to write the noncritical language you prefer but wouldnt insist upon. Here. Enforcing contracts that require fraudulent conduct 2. Requires that the defendant's sole motive was to inflict injury 2. The court refused to make Fullwood pay as they declined to be the “paymaster of the wages of crime. NYS has given the NCAA constitution some teeth. 1. Other laws (like sports broadcasting act etc) 5. . its a stressful time. and Enforcement 1. so an agent looking to sign student-athletes could be found to have committed a tortious interference. and the loan represents a “betray[al] [of] an important. knowledge of the contract is not alleged nor is the procurement of breach 1. NY has tax laws designed to foster national amateur sports 2. damages 2. 1. IV. It may be advisable to wait for an offer so as to not underestimate your adversary. Negotiating tips 1. Given the above. but if you negotiate from your demands you are working on your terms. public trust. Arbitration rights: Just like the above. They all require special knowledge of the circumstances that apply in each situation.” 1. Contracts and Sports: Negotiation. on your field rather than theirs (whoever they are). or referee between thieves. Collective Bargaining 4. Negotiating from your own demands 1. 1. 1. Bargaining history 2. Be available to clients who are in the midst of contract offers and negotiations. because of the acts repugnant to public policy the right to arbitration is overridden. Desires of clients 3. form contracts 7. D's intentional procurement of a breach of contract by the other party 4. if perhaps naïve. they range from food suppliers to television to player contracts to corporate sponsorship deals.” 4. No evidence of either requirement 3. precedent 2.1. Formation. 2. ELEMENTS 1. Tortious interference with Prospective Economic Advantage 1. Requires that the defendant employed unlawful means to make the injury 2. 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.

However the court held: 1. unequal bargaining power and sophisitcated negotiation skills are not valid arguments. Stabler signed contract with Alabama.3. which included a $100k signing bonus. though how they are resolved can be based on your bargaining power. Be sure to resolve all issues with ambiguous or vague terms 1. Stabler files suit claiming he is owed the remaining $30k. Dissent: The term is indefinite. At-will employment is a the bedrock of employment law. largely because his contract forbade him from pursuing other alternatives leading to irreparable damage. Know when to pick your battles. 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. Sample got injured in 1969. 4. This is a result driven decision. terminable at any time. 2. He received $70k of it when the team became unable to pay. Here the majority found that the terms were sufficiently definite and therefore enforceable 1. Salary. 1. contending that the three agreements constitute one contract. Sample's lack of representation. Sample signed three separate documents with the Jets which would require he play for them for 1968. Sample v. Terms of the contract make it clear that injury in a given season entitles him only to the benefits of that year's contract. Where the duration of a contract is indefinite. Where the terms of a contract is clear you cannot consider extrinsic evidence. Rooney v. and he demanded his 1970 injury benefits. The intent of the contract must come from the contract itself. Whether an oral contract to train a boxer for as long as he fights professionally constitutes an enforceable agreement. Stabler (1974) 1. the relationship will be found to be at. Gotham Football = JETS 2.will. Tyson 1. If the term is indefinite or absent the court will find a presumption of at-will that is rebuttable. Alabama Football had used the P's name to its advantage and had received benefits from it. Rescission is allowed because the inability of a party to perform a K after the . Bonuses and Incentives. 3. Alabama Football. 2. put a monetary value on all of the items so that each side knows what they are liable for. Gotham Football Club. and there need be a specifically timed duration to get around it. the majority makes the duration of the fighter's career to be more definite than death. 2. 3. 5. v. 1. 1. 1.Failure to Pay as a Material Breach 1. but that is all. 2. 2. HELD: These are three separate contracts. therefore the claim is dismissed. 1969 and 1970. 4. Inc. because generally a rescission of contract requires that the part give back the money conferred. 4. Contract Duration 1. 1. Inc (1973) 1. Not the same subject matter because it required performance at different times. HELD: He can keep the $70k. It is smart to cost out the contract 1. Each contract refers to an individual season and were all executed separately.

3. Inc. TEST for Negative Injunction 1. The DC properly issued the preliminary injunction which causes one not to breach a contract. Boston Celtics LP v. Would the injunction harm the public interest? . 3. Likelihood of success on the merits 3. Barnett played in Syracuse. Unique or irreplaceable 1. the timing would have prevented the team from being able to intelligently planning for next season. 2.C. Side note: This case is an NBA equivalent acceptance of the reserve system. issued a preliminary injunction. Cuse notified Barnett that his K had been renewed. 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. Barnett (1961) 1. he is more likely to be seen as exceptional and irreplaceable. This is the negative injunction. 2. with exceptional skill and ability and is of peculiar and particular value to the plaintiff. The contract that they agreed to says that they agree that he is in-fact exceptional and unique 2. Central NY Basketball. pursuant to a clause which allowed them to do so (reserve clause?) 1. that this sort of practice is not okay today. 1. However. Shaw was contracted to play in Italy. Shaw (1990) 1. Here note that Shaw plays and gets paid any way. Elements for Preliminary Injunction 1. 3. He signed with BOS. Lack of injunction would cause irreparable harm? 1. so he attempted to finish his term in italy (the second year of his k can be rescinded to play in the NBA). however the Celtics came along and offered him a deal to play for them. 5.K is made is proper grounds for rescission. 1. (he was in the top 20% of scorers) 1. Policy discretion which allows judges a wider range of options 2. while the Celtics lose out on a player they covet. Does the balance of harm favor Shaw or the Celtics? 1. we can see later that in cases like Messersmith. As a matter of contract law. Enforcement 1. Player's skill is important 2. but then realized that the deal was for below market value. Timing is important here too. Balancing of the harm 1. Negative Injunction 1. and when his contract ran out he signed to play in the ABA Cleveland. When a player is moving to enhance his financial benefit. irreparable harm 2. 4. v. HELD: C. Breyer writing for the CoA. HELD: Injunctive relief ordered because Barnett was unique. 4. 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.J. Arbitrator found for the Celtics and the D. Likelihood of success on the merits? 2. regardless of testimony stating otherwise that Barnett is exceptional.

Defendant: plaintiffs waived their right to privacy because of their status as famous athletes 1. 1. 3. The privilege does not extend to commercialization of his personality. Rick Barry signed a contract to play basketball for the Oakland Oaks. 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. and general support of labor policy. NBA rookie of the year and NBA All star. Appropriation of the plaintiff's likeness or name. even if it is true. which makes it the closest to status quo that is attainable. V.2. Schonhorn Enterprises. Barry then signed to play with the San Francisco Warriors. Intrusion upon physical solitude or seclusion 2. Gautier v. v. (1967) 1. but all of their assets were assigned to the Capitols. portrait or picture for advertising purposes or purposes of trade without written consent. Johnson & Son. Personally. peaceable. 5. 2. I think this is analogous to a trade. Washington Capitols Basketball Club. famous people are entitled to less rights in this regard but there are still protections.C. . The Capitols sought a preliminary injunction to prevent Barry from playing basketball for any other team. and "irreparable injury" as injury which is certain and great and which cannot be compensated by the award of money damages. 1. uncontested status between the parties which preceded the present controversy 1. the status quo would have been playing for the Oaks. The use of biographical information for the purposes of commercial project is a violation. Inc. Barry (1969) 1. The court defined "status quo" to mean the last. Court: Sure. giving publicity of a highly objectionable kind with respect to private information about the Plaintiff. Barry was an elite college player. There is a news worthiness exception. (1979) . Inc. 2. NY Statute: Makes it a misdemeanor and a tort to make use of a name. 4.. The Oaks were acquired by the Washington Capitols. 1. Hirsch v. Pro-Football (1952) 3. Inc. This is the 4th one. 3. Prosser's 4 privacy torts: 1. Palmer v. Intellectual Property and Sports 1. 1.distinct from the dissemination of news or information. Schonhorn made a golf game which included the names and profiles of 23 golfers including Arnold Palmer. Plaintiffs contend Schonhorn violated their right to privacy. Plaintiffs never gave permission for the use of their names and were not compensated. Case also supports the deference to the arbitration process. 1. 2. but this is obviously commerical. HELD: Schonhorn violated the golfers' right to privacy 1. The use of biographical information in general is NOT a per se violation. 1. where a contract is assigned from one team to another in exchange for good consideration. False Light 4. S.

A designation use by a person to identify his business. or like here. Here is the standard: 1. it is appropriate for this court to recognize a cause of action to protect this right. Supported by public policy: 1.. my guess is the last two apply. Hirsch testified as to the ACTUAL CONFUSION required by trademark law. Johnson's first ad included a cheer similar to the one used at U Wis. Inc.). Infringement 1. one could see just how this would happen). 2. 2. Jireh Publishing. and can be akin to passing off. 1. “Because the right of publicity – the right to control the commercial exploitation of aspects of a person's identity – differs from other privacy rights. Trade name claim 1. or 2.” 2. During his career his used his nickname on many endorsements. 1. This cause of action exists as well. protects primarily the property rights in the publicity value of aspects of a person's identity.. the actor's g's or s's are APPROVED OR SPONSORED by the other 6. mistake or deception. 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. although other privacy rights were rejected in prior decisions of this court. 2. they called it Crazylegs (one could see how this would happen as women shave their legs. However. 1. 2. the actor's g or s's emanate from the same source as the other 5. Trade name 1. ETW Corporation v. the name is associated with being of high character because of all of the TIME and EFFORT devoted to THAT PURPOSE. rather. Likely to 1. vocation or occupation provided such use is not illegal or contrary to policy. 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. the actor is the business of or associated with the other 3.” 1. Hirsch played in the NFL and in professional basketball. cause confusion. prevention of unjust enrichment 3. (2003) . Trademarks need to be connected with a good or service. Elroy Hirsch is a football player who has a unique running style which led to his nickname Crazylegs (again. “Protects not merely the right to be let alone but. 2. (NOTE: this case determined a cause existed not the merits of those causes. Here. HELD: 1.) 3. interest in controlling one's reputation. Defendant makes shaving cream for women. a trade name is more appropriate here.1. The misuse of a trade name is unfair competition. and took place at a sporting event (running as opposed to football). though he was careful with it's use refusing to associate it with cigarettes and things of that sort. 1. the actor's goods or services are those of another 4. cause prospective purchasers believe that 3. Appropriation 1.

and entitled to full protection of the 1st amendment. Speech is protected even when it is carried out in a form sold for profit. there is artistic relevance and there is no explicit misleading here. 3. Scripps Howard: The first amendment does not trump the RoP when the Plaintiff's entire act is published. photographs. 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." This work was sold as a limited edition print. (now the court must balance Woods' IP right to Jireh's 1st amendment right) 4. The fact that expressive works are sold does not diminish it's degree of protection. ETW owns numerous TMs for the mark "Tiger Woods" including categories 3. It must be proven that it does the job of identifying the source and distinguish from others. 2. pens. Rush created an art print called "The Masters of Augusta" featuring Tiger Woods in the center. 1. Literal depiction for commercial gains will not. 2. 5. 2. the RoP is fundamentally constrained by the 1st amendment. with celebrities in artistic works we use a test that balances the first amendment with the public interest in avoid confusion. If the name or likeness is used merely to attract attention to the work then it loses it's first amendment protection. 3. and a text that comes with the print (not on the print) said the print features Woods "displaying his awesome swing. A celebrity’s name may be used in the title of an artistic work so long as there is some artistic relevance . would be to give Woods himself protection as a living trademark. flanked by his caddie. Right of Publicity is an IP right that is inherent to every human being to control the commercial use of his or her identity. This print. Zacchini v. calendars. The use of Woods' name on the envelope and description is purely descriptive and used in good faith. of art prints. First Amendment Defense: 1. In false endorsement claims. Based on the court's analysis. This is the Tiger Woods case. Unless one image is consistently being used to sell a product. Movies. which will earn money will not deprive Woods of his ability to . 1. However. 2. the idea is that of likelihood of confusion. The print is expressive. Not every word or symbol constitutes a protectable mark.1. It is not reasonable to believe that any image of Woods originated from him. Court holds as a general rule that a person's image or likeness cannot function as a trademark. 1. the first amendment will almost always trump the RoP claim unless there is a purely commercial purpose. trading cards-Class 16. HOLDING: 1. prints and other pieces of art are afforded first amendment protections. 1. When the PI outweighs the 1st amendment then the Lanham Act will apply. The first amendment protection extends to entertainment and other creative works making such claims largely inactionable. Like Elvis goods. Here. However. posters. A piece of art which potrays a historic sporting event communicates and celebrates the value that our culture attaches to such events. that is where there is going to be the belief of origin or endorsement. pencils. 1. To have the court hold that it does.

defendant's use of the information constitutes free-riding on the plaintiff's efforts. Names with historical facts however do not rise to meet that . that Motorola and STATS did not infringe NBA's copyright because they reproduced only facts from the broadcasts. 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. 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). and therefore his name was a symbol of his identity. 5. Associated Press. 2. 1. Inc. without using their identities. Inc. TCI Cablevision. and elsewhere. CBC continued to use the names and statistics of the MLB players. without consent 3. the NBA had not established a claim for misappropriationunder this test. CBC only used the names and historical facts about the players. CBC is a company that ran a fantasy baseball platform.transmitted “real-time” NBA game scores and statistics taken from broadcasts of games in progress to pager owners on STATS' site on America Online. not the expression or description of the game that constitutes the broadcast. In its ruling. In order to make a claim to right of publicity under Missouri State Law (The Restatement Standard) you must: 1. the appellate court established a new test for misappropriation claims under the INS doctrine. 2. Under the test. (1997) 1. 4. Motorola.” much of that decision. plaintiff generates or gathers information at cost. In TCI. was preempted by the Copyright Act. the plaintiff's misappropriation claim must meet five criteria: 1. The trial court held. 1. to be actionable.. The Second Circuit Court of Appeals ruled that while the state's misappropriation law. based on the case of International News Service v. and the appellate court reiterated. The NBA sued for misappropriation under NewYork state law. the information is time-sensitive. HELD: MLBAM and the MLBPA failed to make a claim for being unable to show both elements 1 and 3 1. the name was used in conjunction with the players enforcer personality.reap benefits for endorsements and appearances. STATS.[2]. they had a contract with MLBAM which ran out. where Spawn character Tony Twist was designed to invoke the personality and name of NHL player Tony Twist. The appeals court held that under the facts of this case. Survives copyright preemption as applied to “hot news. v.. show that the D used the Plaintiff's name as a symbol of his identity 2. Inc. defendant is in direct competition with a product or service offered by the plaintiffs. 3. the pager manufacturer. 4. a provider of sporting event scores via pager and online. and 5. CBC Distribution & Marketing. NBA v. 1. with the intent to obtain a commercial advantage 2. MLB Advanced Media LP (2007) 1. Compare to Doe v. 3. and Motorola. Name as a Symbol of Identity 1. which went beyond “hot news” and precluded the use of other information. Inc.

Sports Broadcasting Acts of 1961 and 1966 2. Most anti-trust cases arise in the traditional manufacturer-wholesaler-retailer economic structure . The Copyright act would not preempt a Right of Publicity claim. albeit in a less traditional form. 1. the fact that this was for profit does not rob it of protection (see ETW) 4. VI. Reserve System and the Antitrust Laws: Primer. 3. Anti-trust Overview 1. as is interactive speech 6. Baseball Exemption 2. The consumer's interest in access. that court refused to use a theory of publicity. and are therefore not copyrightable. any more than they endorse box scores. 2. Public Policy 1. which are protected by the first amendment 3. 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. 5. Sports. Palmer came before Zacchini and therefore is merely persuasive and nonbinding.standard. The use of names and statistics do not undermine the policy behind the right of publicity. like in most bodies of law. 2. It does not prevent the athletes from making a living from their sport or from endorsing a product. 2. Distinguished from Palmer 1. cannot be considered separately from the general body of anti-trust law with only 2(ish) exceptions 1. First Amendment 1. the baseball exemption 1. 3. There is also no reason to assume that the players endorse this item. Names and stats are historical facts. 4. 4. 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. 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. entertainment speech is protected by the first amendment 5. Gionfriddo balancing test 1. Copyright Preemption 1. it is expression. However. This speech is protected by the first amendment because 1. 2. recitation and discussion of factual data concerning athletic performance commands a substantial public interest. (which is essentially what fantasy sports are). Intent to Obtain Commercial Advantage 1. 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. Facts are inherently unoriginal. Palmer involved photos and a right of privacy. 2. this is not a use of player information to sell an unrelated production 2. 2.

Inc 518 US 231 (1996) and the Labor exemption 3. this sounds a lot like section 1 of Sherman. Was it a vertical or horizontal agreement? 1. Deals with the prohibition of the “tying” of goods or services. Contract. Though. Which laws will apply to sports? 1. in restraint of trade.. and rarely adds anything in terms of analysis. Sports cases are often considered “landmark” and find wide applications in nonsports situations 1. it is an FTC cause) 4. was the contract. Section 2 1. Therefore they are agreements between current or potential competitors. Independence Tube Corp. 2. Basic Anti-trust Framework for section 1 1.. So this is purely a government cause of action. See Brown v. US: unreasonable restraint of trade 2. these attempts have failed miserably. Section 3 1. Pro-Football. 1. Copperweld Corp declared to be illegal” 1. combination or conspiracy requirement met? 1. Horizontal Agreements 1. Nor can a company contract with itself. Section 7 1. (Actually. Sherman Anti-Trust Act (1890) 1. are agreements made between or among firms or persons on the same level of the market. For this reason sports leagues. This is the case that leagues have tried to build the Single entity argument off of. or exclusivity. See Below 2.: They need to be separate entities. Again. Sherman Section 1 1. Outside of baseball. Standard Oil v.1. combination or conspiracies (or the 3 C's) are just another way of saying that there need to be multiple economic actors. 2. 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. or conspiracy. 2. subsidiaries are not wholly separate. Prohibits M&A's which would substantially lessen competition or to create a monopoly. There is no implied right of action though. Did the challenged conduct involve an agreement ie. 3. The question means that we need an action of two or more persons or entities. “ Every contract in the form of trust or otherwise. 2.. boards and franchises often attempt to argue that the typical body of anti-trust law should not apply to them 2. prohibits unfair methods of competition in or effecting commerce. AFL. Section 5 of the Federal Trade Commission Act 1. usually covered by Sherman sec 1.see American Needle 1. Section 1 1. Again. Section 2 1. Clayton Anti-trust Act (1914) 1. See Below 2. makes price discrimination illegal 3. .NFL mergers etc 3.

Vertical agreements are essential. exclusive vertical agreements can limit others ability to produce a product or enter a market. and lead to the exercise of monopoly power. Perhaps a vertical agreement can cause other companies to expend greater amounts of money in order to get a material 6. Vertical agreements facilitate the functioning of markets and facilitate development. Team affiliations with minor league franchises (note that the franchises themselves are typically owned by someone other than the team. All of the above. Horizontal agreements replace competition with cooperation. 1. If the source material is rare. 3. Example: two tech companies opening a research center together for joint research 3. Vertical price fixing really has not yet been an issue in sports. distinguish the two and we can see it is more likely that a horizontal agreement will be found in restraint of trade. (For this reason look out for it on the exam) 2. 3. Though. 2. 3. when the effect was incidental to an agreement which was designed to improve the competitive working of the market place... A pro-competitive horizontal agreement would be if two firms purchased supplies together allowing them to reduce prices. “. Maybe companies researching cancer can go horizontal considering the amount of money. An anti-competitive horizontal agreement is if all oil distributors got together to limit production or raise prices. 1. Example: Sports teams agreeing to respect each other's exclusive territories. Agreements that raise. Distinguishing pro and anti-competitive agreements 1. 1. which is why 10 years ago Norfolk was the Mets AAA affiliate and now Buffalo is). a manufacturer and a distributor working together. Socony-Vacuum Oil Co. CBS . Vertical Agreement 1.” US v. rather than doing this independently. lower or stabilize prices are per se violations 1.restrictions on free and open price competition pose an actual or potential threat to the central nervous system of the economy. 4. BMI v. 5.1. 2. while horizontal ones rarely are. man power involved plus the public interest in such a product. Was it one of the per se violations? 1. Or pooling funds for a research facility. Such as a seller of raw materials. Horizontal Price Fixing 1. price fixing will not be a per se violation. Example: League agreements with television companies 2. 2. Nearly all sales of products include a vertical agreement of some sort. Example: Player's union demands represent horizontal agreement amongst the players 2. Difference in analysis 1. Analysis 1. 2. Horizontal ones reduce the competition in the market. an agreement on multiple levels of production or sources. But I am making this shit up.

Topco Associates (1972) [PS this is a BIG fucking deal in sports. 3. facility or market required for the third party to compete. Horizontal Market Division 1. 2. SoconyVacuum. dividing up customers or otherwise imposing non-price restraints. this is more Clayton 3 claim rather than Sherman 1 claim. Horizontal conspiracies to allocate territories. US v. If it was a per se violation. 2. Often includes cutting off a supply. Sports Example: In order to buy season tickets you must buy preseason tickets. US (1958) 1. Boycotting firms typically have dominant power in the relevant market. I do not see the multiple actors. concerted refusal. 4. 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. in order to by Twins rights you must buy Minnesota North Stars rights. such as the 4th circuit have allowed a narrow affirmative defense. Northwest Wholesale Stationers v. Even though there was no agreement to stabilizing prices it was held to to be a per se price fxing violation. This can be used to leverage market power in one market into power in another.] 2. to deal with others or a third party. 1. v. Though no claim has really been made in sports.(1979) 3. Tying 1. an agreement by a party to sell one product but only on the condition that the buyer also purchases a different or tied product. because not all of them are. which would allow the . 4. 1. typically from horizontal competitors. 2. BMI v. Group Boycotts 1. 1. 2. major oil companies agreed to purchase all excess gas supplied by independent oil companies to prevent prices from dropping wound up stabilizing prices. Simple agreements to to avoid each other's territory or customers are such a division. Though price doesnt have to the be the object of agreements 1. 2. Honestly. does it merit per se treatment? 1. when the effect was incidental to an agreement which was designed to improve the competitive working of the market place. price fixing will not be a per se violation. As far as horizontal market division goes. Nothern Pacific Ry. Ex: Bundling team rights. Sports Example: PSL's and season tickets 3. Though. Joint efforts by firms to disadvantage competitors by either directly denying or coercing suppliers to deny relationships the competitors need in the competitive struggle. 3. some courts. CBS (1979) 2. Pacific Stationary and Printing (1985): describes which types of group boycotts are per se illegal. 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. 1.

Courts are moving more toward a rule of reason for many HMD's. Charles O. or combine or conspire. the area of effective competition in which the product or it's . price. NSPE v. Hospital Building Co v. which could be either a product or geographic market. was there an agreement between two or more persons? 1. Brown Shoe Co v. “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.. cross elasticity of supply will also be high.” 2.. Trustees of Rex Hospital / NCAA v. What are it's anti-competitive effects? 4. Establish a relevant market 1. US (1978): the inquiry is confined to consideration of the impact on competitive conditions. US) 3. NBA (1991) et al. What are its pro-competitive effects? 1. Ltd. 3. du Pont : “The market is composed of products that have reasonable interchangeability for the purposes for which they are produced. The agreement or conduct adversely affected competition in the relevant market. and again the two commodities should be treated as part of the same market” 4. Monopolization Elements 1.. though this is debateable. Board of Regents Uni. US 2. The relevant market is the area of effective competition within the defendant operates. Where the degree of substitutability in production is high. Inc v. Board of Regents of Univ. 1. use and qualities considered. If not. of Okla. See above 2. US v. Relevant Product Market 1. After reading it I cannot understand the exceptions to the group boycotting per se rule. 1. Though through NCAA v. to monopolize any part of the trade or commerce among the several states. may have broadened the inquiry. 5. is decided by the trier of fact and will be set aside only if clearly erroneous (International Boxing Club v. (1975) 1. 3. or attempt to monopolize. 1. 5. (SCOTUS 1984). Twin City Sportservice. If the pro-competitive outweigh the anti-competitive. US/ Std Oil Co. then under the rule of reason: 1. Relevant Geographic Market 1. not as the NSPE asserted that a general benefit to the safety of the public was sufficient. “ Every person who shall rule of reason examination if the defendants acted with the purpose AND effect of achieving a legitimate public policy objective. Chicago Professional Sports. Partnership v. Section 2 1. shall be guilty of a felony. “ 2. For analysis of the relevant market see Section 2 analysis. Which one. is there a less restrictive way to achieve the same effect? 5. Section 2 Analysis 1. v. Okla.. Finley & Co.

2. through superior skill. 2. Location and facilities of other sellers are important. and customer convenience must be considered. 2. OR 3. 1. The existence of an agreement 2. Hecht v. however in reality. 64% might 2. Typically 70% market share is considered monopoly power. Defenses 1. currently all of this is similar to the section balancing test. Inc (1977) 1. 33% isnt. economic and physical barriers to expansion as transportation costs. only to turn on that victorious competitor and intend to put them out of business/ involuntary elimination of competitors (Alcoa) 2. it will be covered by section 1 2. the conduct of the monopolist constituted an improper use or abuse of its monopoly power. ProFootball. encouraging competition. market share is the most commonly used method. in between is iffy. 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. delivery limitation. (sounds like the criminal law standard) 3. 2. Elements 1. (do this also during the pendency of the trial) 3. Conspiracy 1. foresight or industry rather than wrongful conduct. degree of barriers to entry. Wow. 2. when new or existing competitors would have eroded that power. size of the firms competitors. US v. 3. exclusionary or predatory conduct 1. maintenance of market share despite an inferior product. is irrelevant.reasonably interchangeable substitutes are traded. 2. the wrongful conduct helped the monopolist maintain its power. Alcoa says 63% definitely is not. EI Du Pont de Nemours 1956) . an overt act by one of the parties in furtherance of the conspiracy 1. the monopoly power was acquired through some sort of wrongful. Learned Hand: 66% is. Prove that the defendant has monopoly power 1. Attempt to Monopolize 1. 3. and show that: 1. that sounds like a lot of bullshit. Defendant will show it doesnt have this power by enlarging the relevant market or by showing that it cannot raise the market price. considered in terms of the ability to raise market prices or exclude competition (US v. 1. Finally the defendant will try to show that it gained its position lawfully. 3. Defendant's market share must typically be around 30% 2. Stability of market over time. the conduct is moving the defendant at a steady rate toward higher market shares. 2. A substantial amount of commerce was affected or would be affected by . Other determining factors 1. because more times than not. 1.

They were essentially team property. travel. 1. 2. Burton: UH.. but not broadcasters] 1. however it has an exemption from the Anti-trust law. baseball had operated under the reasonable assumption that had this exemption. Chandler: The equities are with the victims of the reserve clause. The business of baseball. Topps) . v. and have declined to remove the exemption. v. Henderson Broadcasting Corp. HELD: Baseball is a business engaged in interstate commerce. such as leagues. Rodovich and International Boxing. Interstate transport is merely incidental. At this time in the MLB each contract maintains a clause which allows the team to renew a contract each year continually. we'll take it. yet Pre-Curt Flood Act 1. 2. not related to production baseball is not a subject of commerce. Congress has considered the issue several times. 1. This is called the reserve clause. Personal effort. Post Flood Exemption. Broadcasting 2. Curt Flood is an OF for the Cardinals. food. Federal Baseball Club of Baltimore. not the essential thing and things which are not commerce do not become so. 3. and it created a system where players could not enter a free player market. which means that it is not congress' intent to have these law apply to baseball. HELD: The baseball exception applies only to those aspects of baseball.the planned conduct 4. 1. ML of Professional Baseball Clubs(1922) 1. brief albeit legitimate argument the court asserts is that because of Federal Baseball Clubs. 1. Dissent: Douglas: Gardella v. But hey. does interstate commerce. equipment etc. Though. Well all know that this is bull shit.. Theres farm systems. No Exception in: 1. New York Yankees. 7. specific intent on the agreeing parties to monopolize 6. (!982) [biz. clubs and players which are integral to the sport and not to related activities which merely enhance its commercial success. Toolson v. Kuhn (1972) 1. 2. players taken from other states and countries. Inc. stop kidding yourselves. 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. v. Toolson affirms Federal Baseball Clubs on the grounds of Federal Baseball Clubs. the exemption was limited only to baseball and no other sports. by crossing state lines. is exhibitions. television. The Baseball Exemption 1. DISSENTING: J. 1. Inc. Plus the fact that Congress had not addressed the issue by law. 3. Flood v. and it would be unfair to say that they violated the law when the court said they didnt. In one of the worst fucking written opinions of all time. Baseball Cards (Fleer Corp. Inc (1953) 1.which is an exception and anomaly. in Haywood. The one. Houston Sports Ass'n.

1. Piazza and the effect Flood had on Federal Ballclubs. This case comes from Piazza. Piazza v. This is the appeal of the Butterworth case. looking into the combination in restraint of trade in connection with the sale and purchase of the SF franchise. . Flood still may have broader antitrust exemption authority that does not make it totally obsolete – this doesn’t address franchise relocation. Butterworth v. Vincent Piazza and his group had a deal to purchase the SF Giants for 115 mil. extends only to the reserve system and matters of league structure. however. are basic elements of the production of major league baseball games. 1. Crist (11th Cir 2003) [biz of baseball] 1. Curt Flood Act of 1998 1. Gave MLB players the same rights as other athletes to sue in antitrust when the suit is related to labor relations. which require result stare decisis (because of the holding in Flood). finding that the exemption broadly protected the “business of baseball. jointly agree to lobby Congress to overturn baseball’s antitrust exception. strike. MLB (1993) [reserve/some business] 1. 8. 1. after which he wanted to move them to Tampa Bay.3. etc (Piazza issue) – just gives players the right to file antitrust suit. ended the deal and prevented the move. Partially overturns Federal Baseball. Therefore. Piazza sues for violation of Sherman. concluding that “the number of clubs. The denial of the relocation of the team. The NL moved to quash the investigative demands based on its exemption. as the AG of Florida issued civil anti-trust investigative demands on the NL. Concessions 2. 2. In this oddly decided case. Anti-Trust and Sports: Eligibility.”the Crist court ultimately adopted the district court’s interpretation of the relevant authority. HELD: Based on. only the Reserve system is subject to exemption from the anti-trust law. Veterans and Free Agency 1. NL of Professional Baseball Clubs (1994)[reserve] 1. 1. and their organization into leagues for the purpose of playing scheduled games. Done after collusion (see later). 3.” VII. Rookies. MLB stepped in. 1. Crist succeeded Butterworth as AG. because this has profound effects on the structure of the league. the exception does not apply as it pertains to the purchase of teams and must be subjected to Rule of Reason analysis. MLB v. Player Restraints and application of the Per Se Rule 1. the court looked at the per se rules and the charges that QB Kapp made against the NFL. 1. NFL (1974) 1. Basically applies antitrust to baseball with regard to labor. 2. 9. might be covered by the exception. Noting that the scope of the baseball exemption had been “the subject of extensive litigation over the years. and Flood w/r/t players. 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. Personal question: How come the league still gets to approve ownership? 3. HELD: Federal Baseball and it's progeny. Kapp v. 1. Toolson.

This is restrictive because even while not under contract a player's ability to operate in a free market is almost non existent. due to the differences between businesses and sport should not be applied so readily. because it would have bound him to such illegal terms in the constitution and by laws. 2. though only draft picks are awarded or created. However. agreed to by the teams or the commissioner. 1976) 1. He admitted to gambling on his .) 1.2. where your business would fail without equally competent competition. finding that per se violations are inappropriate given the special differences in the business of sports. Molinas v. 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. in fact you want them to be close to equally as competitive as your team is (studies indicate that 60-40 is nice). which provided that when a player at the end of his contract term signs with another team his previous team gets a ransom. Application of the per se rule really only makes sense in an environment where the dynamic is not like this. involving type A and B free agents. The restriction applied to everyone not just the top free agents. but given the way that team sports work. One man rule. Draft Rule. in sports economics parlance Louis-Schmelling Complex. 1. The Option rule is not so unreasonable so as to be decided by summary judgment. One of these differences is. Player Restraints: Limitations on Participation 1. the actions themselves are not per se illegal. 5. requiring that even when a team makes no offer or no sufficient offer. 2. it was unlimited in duration and provided no procedural safe guards. 1. Mackey v. There are other less restrictive ways to maintain the the competitve nature of the league. The NFL defended on the grounds that it was necessary for competitive balance. however. Court did not buy that shiz. NBA (1961) 1. a restriction on the talent could be allowable. This rule operates as a perpetual restraint on player movement. NFL (8th Cir. Kapp's refusal to sign the contract was okay. this rule. the rule by which the commissioner has final decision which is unappealable is just as unreasonable because it goes against the Federal Arbitration Act. 2. 4. 2. 1. Again tested the use of per se violations and the Rozelle Rule. Therefore there is no interest in putting other teams in your league out of business. 1. The Rozelle rule was highly anti-competitive because it effectively eradicating free agent offers. Note: that baseball has a compensation system. We can see here how the court says this rule is not okay. 2. Court asked for a legitimate business purpose and whether there is a less restrictive means to accomplish that purpose. 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. Rozelle Rule. the degree of these rules were. HELD: The per se rule. This court actually distinguishes sports from real life. Jack Molinas was a player for the Detroit Pistons.

1. Holding 1. 2. not antitrust. but necessary for the survival of the league. 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. The 2nd Circuit reasoned that the primary objective of anti-trust legislation is to preserve business competition. As to the the refusal to reinstate. 1. The reserve clause issue: In order for a private plaintiff in a civil anti-trust suit to recover. behaving a joint venture is still a combination. North American Soccer League v. 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. 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. Clarett claimed this reduced the competitive market of professional football and therefore violated antitrust law. Anti-Trust and Sports: Restraints on Owners and Leagues 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. but did not. Here there is no evidence. must establish a clear causal connection between the violation alleged and the injuries suffered. such as the NASL. must divest ownership of said team. The issue is whether the NFL’s eligibility rule is exempt from antitrust law 2. 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- . it wont be the last time): A combination of actors. NFL (2nd Cir 2004) 1. The NFL began limiting amateur entrance into the draft in 1925 to prevent injury to young and immature athletes. and surely enough. NFL (1981) 1. Single Entity argument rejected (get used to it boys. HELD 1. nor is it alleged that Molinas' injury results or stems from the reserve clause 2. During his suspension he went to Brooklyn Law School where he learned to sue people. 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. 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. Maurice Clarrett was a talented albeit bat shit crazy RB at THE Ohio State University. Inter-Sport Competition and Cross-Ownership Bans He was indefinitely suspended. 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. 2. Clarrett v. The eligibility rules were located in the NFL Constitution and Bylaws. NFL passes amendment to by-laws mandating that owners who cross own or receive income from ownership in another competing league. VIII. 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.

Citing NASL v. where cross ownership prohibitions where violative of section 1 even with the admission that cooperation between the teams was necessary. 2. Each team jointly creates policy 6. rule 4. it and the league looked for a new resident. and some teams like the Jets and Giants will compete for fans and fan dollars. and no team has been ran less efficiently because of it. 1. Los Angeles Memorial Coliseum Comm'n v. Basic Elements 1. Franchise Relocation 1.3 required a 100% vote to approve relocations within another team's territory. moved to Anaheim. Court says that this type of behavior does not rise to the level of badness that would warrant per se ruling without further analysis. The NFL hasnt been able to show evidence of the type of information they are referring (duh! Its confidential!) 2. 2. yet in the past they have violated section 1 2. 2. Threshold requirement 1. The LA Rams. Other organizations just as unitary have been found to be in violation 3. Price Fixing 2. however in the 1980 vote failed. 1. Court says NAH BRAH. 1. Confidential information is protected by the ban 1. NFL claims the market is quite large. Rule of Reason 1. Alternative: remove cross-owners from broadcasting rights committee. Multiple corporations operate as a single entity when corporate policies are set by one individual or by a parent corporation. The ban prevents CoI's 1. Even though revenues are shared and divided there is still a huge difference in profits and losses from team to team. largely in part to the restrictive approval policies established by the leagues. Granting the NFL Single Entity status would be to immunize them from all antitrust liability. there has been cross ownership for a while and the NFL is still dominant. 1. Al Davis and his Oakland Raiders step in and decide they wanted to move from Oakland to LA. 7. with the LA Coliseum empty. management and players. 4. the ability to purchase a franchise is limited to a narrow group of eligible purchasers. limiting market or customer areas 3. the clubs are not separate businesses and each has its own separate value 4. NFL clubs compete with each other for talent on and off the field. any financier can try. 2. NFL (1984) 1. Pro-competitive effects 1.competitive effects. Per Se rule is also rejected. Single Entity Issue 1. . which set their own prices. which is still in the LA territory. Court calls bull shit again. hire their own coaches. 1) an agreement 2) intended to cause harm or unreasonably restrain trade 3)actual injury to competition. 5. 1978. In response to legal threats the league changed the rule to a 3/4th super majority. NFL. LAMCC and the Raiders brought this action.

In 1978 Davis suggested that rule 4. In regard to the joint marketing reason. Inc.1. SDC Basketball Club. There was no showing that the move would harm the competition of the league. that in order to properly exercise the rights which come with their ability to collectively negotiate the TV rights. 2. Court agrees that territorial divisions are ancillary to football. 1. which means the rule of reason must be applied.3 1. no facility problems. 2. Reasonableness of Rule 4.3 be replaced by objective guidelines rather than a subjective voting measure.3 effected competition among NFL teams and among stadia.3 encourages stability which prevents one team from gaining an unfair advantage on the field. 3. No schedule problems. which contribute to attendance and television viewing. Agreement via NFL constitution and by-laws 2. 1. 1.3 is on its surface an agreement to control and/or prevent competition among NFL teams via territorial divisions. 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. 2. 3. (1987) 1. 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. rule 4. there are far less restrictive ones which could carry out the same goals. Rule 4. 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. Regulation of private profit is best left to the market. that while these are pretty worthwhile reasons. As to the local government reason. Relevant market 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. NFL argued that the ancillary restraint doctrine applies here. Rather. 1. The court HELD. There is the additional joint marketing issue. Though the court states the difficulty that sport presents in this area. Territories foster fan loyalty which promotes traditional rivalries. the issue of whether or not a league rule prohibiting the relocation of a team is a fact specific issue. . 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). Economic arguments should be made. 4. Essentially states that the holding in Raiders I (above). While it does not seem extremely clear from the opinion I think that the court decided that 4. 6. 5. the league must be able to have some control over team placements to ensure football is popular in many markets. no foreseeable loss of league revenues. NBA v. is not a rule.

1. merely 8. economic projections. Indendence Tube Corp 1. Corporations and their wholly owned subsidiary are a single enterprise for the purposes of section 1. Never asking for a vote. being a dick. Unity of Interests 2. Then he was in financial trouble and he wanted to sell a minority interest in the team in stock. Though the court felt that the evidence was “rather thin” it was not too thin to support a finding for Sullivan. Court rejects the NFL's argument that there was no injury to competition 1.. 1. 1.. Sullivan owned the Patriots and it was partially publicly traded. but not the general proposition that no policy regarding ownership can injure competition. This leads also to the rejection of the single entity argument again.. “[This policy] restricts competition between clubs for the sale of their ownership interests. Sullivan sold the team for $87 million. The court rejected the NFL's claim that there was insufficient evidence of harm to competition. 3. but did not limit competition between the teams themselves. 3. He sued claiming that the policy was in violation of Sherman. There should be an objective set of criteria such as population. A policy which restricts the buying and selling of teams injures competition in that market. 4. Court declines to find that as a matter of law the NFL teams do not compete against each other. to exclude from the league owners who may be more effective . The rule must be closely tailored to the business objectives 3. which had an unwritten policy forbidding public ownership of teams. Then the AFL merged with the NFL. 1. playing facilities. NFL denies that NFL teams compete for the sale of their ownership interests. Market: nationwide market for the sale and purchase of ownership interests in the NFL member clubs. Those same cases left open the possibility that competition for ownership was a legitimate market. 1. Sullivan v. This argument rests on the relevant market 1. 3. 2.. He bought all of the stock back.” 2. whether any of the defendants has pursued interests diverse from those of the cooperative itself. which was a low price. NE. While there is case law to backup the idea that the league can refuse approval to individual transfers of team ownership. NFL (1994) 1. and television revenues. in particular. Summary judgment will be hard to obtain. Transfer of Ownership 1. and enables a group of owners. 2. 1. He asked other owners to alter the rule to allow him to do it. The NFL's policy had actual harmful effect on the competition in this market. said he was not in favor of the proposal and that league support was very dubious. regional balance.[whereas the other] cases a league's refusal to approve a given sale transaction or new team merely prevented outsiders from joining the league. Sullivan's expert: NFL exercises monopoly power in preventing certain people from owning a franchise. Do I really need to mention that sports teams do this. 1.2. Rozelle.. Copperweld v. 1.

It contributes to the NFL's ability to function as an effective league. so that a singular majority owner controls the dividends and so forth. a television superstation carried nationally on cable. such as preventing majority shares being sold. Sullivan never asked for a vote. 1. The restraint is ancillary to the functioning of such a joint activity. 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. the NBA contends that antitrust laws allow it to fix a lower number (15 to 20) and collect the tax proposed. 2. The NBA signed a contract that transferred all broadcast rights to NBC. Chicago wants to broadcast 41 games per year over WGN. 6. such an ancillary rule can still violate section1. Even though. The Bulls wanted to broadcast more of their games over WGN. This policy restricts the market for investment capital 1. 3. the balancing test instruction. Proving that the policy reduces the available output of ownership interests. Equal involvement defense. This is not enough to get around the Rule of Reason. 2. 5. the evidence was weak but strong enough to support the verdict. NBA (1996) 1. Again. 1. If he didnt request it for reasons other than the policy then there is no case 3. NBC only shows 26 games during the regular season and the network contract allows the league and its teams to . 2. The court accepts this notion. wait. and that such rules controlling who joins a joint venture and the policy in question constitutes an ancillary rule. the jury needs to be instructed to consider the pro-competitive justifications. 1. Investors short term interests are different from the long term interests of the league and team ownership. 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. not just for the purpose of owning a sports team 3. There are less restrictive means to achieve this goal.competitors than they themselves are. The district court made a 30 game allowance permanent and held the NBA’s fee excessive. Oh. TRIAL ERRORS 1. PS. Chicago Professional Sports LP v. they did. 3. these statements imply that if allowed there would be competition for ownership of teams. then make a salary cap. 1. Need to prove that the antitrust violation was a material cause not the sole cause. 2. 4. 1. Injury in Fact 1. Since 1991 the Bulls and WGN have been allowed by injunction to broadcast 25 to 30 games per year. Ancillary Benefits 1. The failure to request a vote can be a potentially dispositive issue in the case. 2. Even people would just buy stock for investment purposes. there was evidence it was rejected any way. 2. UH.

the Bulls and WGN must respect the league’s limitations on the maximum number of superstation telecasts. of the same corp. therefore. Such as the central licensing units of professional sports leagues? 3. especially for the NFL. Wholly owned subs. 2. the defense was considered dead. This is called the Single Entity Defense. They have a complete unity of interest 2. not joint. conduct 2. Why Copperweld really doesnt help the sports leagues 1. Just because they share money does not mean they are incapable of consipiracy. 4. 3. does not involve a sudden joining of economic resources that had previously served different interests. 3. linked by their constitution and by laws but not owned commonly. Corporations and it's unincorporated divisions also engage in unitary conduct. 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. MidSouth Grizzlies v. THE SINGLE ENTITY DEFENSE 1. 4. 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. Although. Copperweld generally requires complete ownership. Most importantly however was the finding that corporations and their wholly owned subsidiaries are single entities. 2. 3. The league has no power to run the teams absent any extreme circumstances (see MLB purchasing the Montreal Expos and moving to WAS). NFL (1984) 2. the NBA may be treated as a single firm in that it produces a single product. League-wide sharing of revenue does not support a notion of unity of interest. it fails on the fact that Copperweld makes direct reference to the “joining of economic reasources which have previously served different interests. However Copperweld Corp v. After the decision in NASL and Raiders I (LA Coliseum). Teams are separate businesses. the teams of the league have competing interests. 1.permit telecasts at other times. according to Copperweld. There is no sharing of costs and there are wide gaps in profitability from team to team. complete unity of interest or absolute right to control. 1. directors and employees of a single firm engage in unitary. 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. NBA (1992). 1. Copperweld 1. 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. Even if the revenue sharing portion were enough. The league does not have the absolute right to control.” . Independence Tube Corp (1984) reignited the dying flame. the teams each control their teams as they see fit. Chicago Professional Sports LP v. Because of the multiple actors requirement of section 1 in Sherman. 1. Officers. may be treated the same.

Of course.’ ” 3. Pro-Football (1996): teams compete for fans. does not mean that they are in unity of interests. Honestly. “Competitors. Judge Easterbrook wrote a shitty fucking decision. providing no real standard and waffling on whether a per se rule or rule of reason should be used. NFL: whether any defendants had pursued interests diverse from those of the cooperative itself. Decision by JPS 1.. Teams with more valuable IP take less money at the expense of maintaining this competition.” 4. By 1991 the defense was so dead that the NBA didnt even mention it in Chi pro sports LP (1992) (Bulls I) 6.” 5. in Bulls II. But. the NFL produces NFL football. 3. Sullivan v. for gate and player/on field personnel. and they choose to pool them in NFLP. American Needle v.. but that does not mean that cooperation amongst NFL teams is immune from [Sherman Act] scrutiny. A K. 5.4. Though. quoting colleague Justice Sonia Sotomayor when she was a judge on the Second Circuit Court. the revenue is split evenly. NFL (2010) 1. NFL: the financial performance of each team is related to the others but does not necessarily rise and fall with that of the others. I see how each team owns a valuable commodity in its own IP rights. misapplying legal standards. Members of any cartel could insist that their cooperation is necessary to produce the ‘cartel product’ and compete with other products. get more money to remain competitive. “NFL teams do not possess either the unitary decision making quality or the single aggregation of economic power characteristic of independent action. and held that there needs to be a further investigation as to whether the NBA was a single entity. “To license their separately owned trademarks collectively and to only one vendor are decisions that deprive the marketplace of independent centers of decision making. NFLP's licensing decsions are made by the 32 separate entities which own the corporation and the rights that they . 2.” 2. so that the league teams with less valuable IP. When each team licenses its IP it is acting in their own interest not in the interests of the league.whether it joins together separate decision makers. Just because the teams need each other to exist. 1.” he added. NASL v. “The key is. and it chooses which one company gets the rights. 2. 1. NFLP is liable to section 1 attacks as well. 1. 6. “defining the product as ‘NFL football’ puts the cart before the horse. And its a VERY well known one at that. 5.he certainly seemed to favor it. ” ‘cannot simply get around’ antitrust liability by acting ‘through a third-party intermediary or ‘joint venture. Brown v. In the market for IP 1. combo or conspiracy that is necessary or useful to a joint venture is still just that: a combo etc. ignoring the treatises he himself cited to. to a firm making hats the colts and the saints are two potentially competing suppliers of valuable trademarks. which is what the league needs to survive. Product Market and Joint Action 1. PS I have never seen a text shit all over a judge like this in my life. I agree with just half of this. “substance over form” 4.

2. the performance. or arising from. 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. NHL (2007) 1. Though these are decisions made inside one corporation. IX. holding that MSG had failed to demonstrate a likelihood of success or a sufficiently serious question going to the merits. "by seeking to control the competitive activities of independent business in ways that are not necessary to the functioning of the [NHL] joint venture. 2." 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. which required. The Complaint filed by MSG. was much broader and challenged NHL restraints relating to four different categories: 1) merchandising and licensing. marks. and advertising. NFLP is merely an instrumentality of the teams because the business interests will often coincide with that of the business. 2. The complaint further alleges that. Anti-Trust: League Wide Media Contracts and Web Content 1. without limitation. in the alternative. such commonality exists in every cartel. In holding that the release does not violate public policy. among other things. First. licensing rights. 1. finding that they were released pursuant to the Consent Agreement (and. 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. the migration of the MSG-owned Rangers’ website to an NHLoperated server. 3) advertising and sponsorship. in the alternative. 1. and broadcast rights. when the parties of the agreement are acting on interests separate from those of the firm itself . 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." 1. MSG v. in the alternative. the intrafirm agreements are merely a formalistic shell for concerted action. dashboard sales.” 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. Each team takes its individual economic benefits apart from the NFLP profits as a result of the decisions they make for NFLP 3. broadcasting. were barred by the doctrine of laches). MSG’s injunction challenged only the NHL’s New Media Strategy. however. any hockey operations or any NHL all non-New Media claims) were barred by a release in a Consent Agreement signed by MSG in 2005 (or. that MSG had failed to allege antitrust injury). 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. Second. Judge Preska dismissed all of the non-New Media claims. Judge Preska essentially rejected the antitrust challenge to NHL’s various restrictions regarding merchandising. the NHL raised two primary arguments. the NHL argued that all claims relating to the first three categories (ie. The Consent Agreement reads. including. presentation or exploitation of any hockey game…. merchandising rights. 2) broadcasting and streaming. concluding . 4) and New Media. were barred by the doctrine of laches). the NHL has become an illegal cartel. In its motion to dismiss.

Pennington (1965) 1.. Jewel Tea Co. will damage property.” 2.. Clayton 6 and 20 were specifically designed to avoid such a situation. 6 1. That means that the provisions of the agreement cannot be attacked as collusive or anti-competitive. . 1.” X. Where a contract provision is so intimately related to wages. a cap can be a violation of the antitrust law. In pure antitrust terms. 2. (1965) 1. Judge Preska therefore had to determine if the single entity defense barred MSG’s New Media Strategy Section 1 antitrust claims. Clarett v. the cap cannot attacked in court as a violation of antitrust. Basically. and not at the behest of or in combination with non-labor groups it is exempt from the Sherman Act. Non-Statutory Exemption 1. Judge Preska noted that “there is no evidence in the record on the crucial question of market definition. instituted for the purposes of mutual help. “Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor. did not exist at the time the Consent Agreement was signed.” and that “[m]ost other Courts that have taken up the issue have reached the same conclusion. 3.organizations. 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. Clayton sec. Unless that strike is illegal. let alone the inquiry into how the NHL actually operates as an economic actor in that market. 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. J. 1. The New Media Strategy. however. Goldberg Dissenting: We should not carve away the power to collectively bargain be creating ways to open them up to the antitrust laws.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. NFL (2004) 1. and thus was not barred by the general release.” In particular.. as in the case of a monopoly or price-fixing conspiracy.” and “therefore the NHL’s arguments in favor of dismissal cannot be resolved at the pleading stage. 2. 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. United Mine Workers of America v. Amalgated Meat Cutters v.” 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. Say that a salary cap is agreed to by a union and management.” 3. But since the cap was part of the collective bargaining agreement negotiated in good faith and agreed-to by the union and management. 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. is violent or constitutes a secondary strike. any union-management agreement that was a product of good faith negotiation will receive protection from the antitrust laws. Clayton sec 20 1.

this is really a condition for bargaining. because of the way that Labor law works is that once the CBA terminates the status quo is maintained. Labor Exemption when CBA expires 1. 3-prong Test: 1. The commissioner tries to use the labor exemption to enforce the Rozelle rule. the labor exemption applies. 2. Union rejects this offer and they bargain to impasse. My assumption is. 4. union played without a new contract. Which flies in the face of the policy we are going for. Meaning I was correct earlier insofar as so long as there is a section 9a relationship. to requiring a relationship to exist. 3. so no antitrust liability. NFL (1989) 1. 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. 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. This case deals with the addition of developmental practice squads in the NFL. Brown v. the league unilaterally imposed that offer. Mackey v.. sued over free agency. if the union however were to disband. (Of course when this happens there will be a strike or lock out). Inc (1996) 1. labor law governs. 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. 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. If impasse were to end the relationship then it would be too easy to artificially create impasse. 1987 NFL strike ended. J Breyer: Labor laws cannot work properly if at any pt in process can use . Pro-Football. Though. even if implemented unilaterally it is not subject to antitrust laws 2. 1. 3. This extends the Mackey prong from requiring an agreement to exist. Judge says as long as the parties have a collective bargaining relationship. I think. 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. 1. then there would be issues. The problem with this could be that when impasse happens. which opened it to antitrust attacks and was found to be anti-competitive as seen earlier. the employer can impose his last good faith offer. The League offered the union to pay them $1. Does the labor exemption apply? 1.000 per week. 1. and open the league up to antitrust litigation (or the union) 1. Powell v. 2. NFL (1976) 1.3. Local 100 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. Court assumed that Rozelle Rule wasn’t part of arm’s length bargaining. Due to impasse.

On a thursday the union made its unconditional request for reinstatement. When might the players ever again resort to antitrust laws? 1. only the players who returned by the wednesday deadline were fully reinstated. Even though this is similar to the inherently destructive acts taken in NLRB v.antitrust law… 4. For the NFL to negotiate with Clarett would be an ULP. the motive can be defeated because of the nature of the act itself). retention. player discipline 2. dispute resolution 4. instituted a reporting deadline for strikers for a wednesday to eligible for games and payment. 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. individual players contracts 3. Labor Law and Sports: Collective Bargaining and Arbitration 1. 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. 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. 2. The existence of joint employment relationship depends on the control than another employer exercises over another employer. 1. 9(b) provides some of the basic outlines. However the court called BS because players who hold out for better contracts and miss time are not held to similar requirement. A unit is typically reasonable if they share a community of interests. but it is WIDE open. XI. NASLPA in its petition for recognition included all NASL players in the bargaining unit. termination of players 2. 1. The NLRB found that the NSAL teams were joint employers and therefore this type of bargaining is okay (multiemployer bargaining). and in terms of judicial review there is an arbitrary and capricious standard. NLRB 1. NFLMC. . NASL has significant control to effectuate labor policy 1. North American Soccer League v. 1. in the inherent ones. 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. NFL Management Council and NFLPA (1992) 1. 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). 2. Clarett's argument completely neglects that labor policy exists 2. NFL (2004) Again 1. If Union in existence (collective bargaining relationship in existence) will be governed exclusively by labor law & antitrust law will not apply 5. 1. which is just mildly ridiculous to say. Clarett v. 9(a) establishes that the NLRB determines the unit 2. 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. 1. 2. eligible to play and paid for games that week. selection.

If the PRC said that. 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. But in the 1985 offseason. 3. However. Deadline was only applicable to striking players and not nonstrikers who signed on Saturday before the game. Morio v. they would have to present their financial documents. This is about by-passing the bargaining representative. The MLBPA filed for arbitration to greive the issue. claiming collusion in violation of Article XVIII(H) of the basic agreement (the CBA). The MLBPA requested financial data to prove the claim . Inc. In 1978 the NASLPA was recognized as the exclusive bargaining agent of the players in the NASL. 2. Silverman v. 8(a)(5) requires to bargain in good faith. which is also an 8a5. 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. 97% of the contracts were negotiated after the NLRB certification of the union. They claimed that they had bad experiences with FA's and would rather develop from within. including individual contracts. Administrative burdens was a bad excuse too. 5. Free agency and salary arbitration are mandatory subjects. The NASL was making unilateral changes in the conditions of employment. the NASL continued to negotiate individual contracts. In the 1984 offseason there was plenty of free agent signing. 1. In the Matter of Arbitration Between MLBPA and the 26 MLB Clubs (1986) 1. 1. After a union has been certified the NLRB can prevent the enforcement of unilateral changes made by the league. the MLBRC refused claiming financial hardship was not the reason for difficulty. Saftey did not preclude reinstatement in the 1982 strike. yeah thats the reason. 6. MLB Player Relations Comm. 1.. MLB PRC (1995) 1. The fact that NASL was appealing certification does not relieve them of their duty to bargain in good faith. 4. (1981) 1. 5. The negotiations were tough. 2. This was a violation of 8(a)(3) and 8(a)(1) Silverman v. 1. 1. NLRB v.3. Katz: it is an 8a5 to undercut the union by entering into individual contracts with employees. 1. . The Weds. 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. The MLBPA was bargaining with the MLBPRC. MLB changes (elimination of salary arbitration and anti-collusion terms declaring impasse) violate the duty of good faith in bargaining. NASL (1980) 1. 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. 4. 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. 2. This is a refusal to furnish information case 2. unilateral implementation of mandatory subjects/ 8a5 8a1 2.

2. Only when the arbiter strays from interpretation and application of the agreement does he effectively dispense his own brand of justice. 3. Miami Dolphins Ltd. 1986 and 1987. pursuant to his contract wanted the bonuses back. arbiter misconduct in refusing to postpone the hearing where there was good cause to postpone or in refusing to hear pertinent and material evidence . Vacate when: 1. claimed that before the end of the 1985 season SD Padres owner offered him an extension through the 1989 season. The arbiter denied Garvey's claim. The arbiter found that his contract had the clause and there was no reason not to order the payment. 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. Arbiter exceeded his power so far that no mutual final and definite award was made. HELD: The owners and MLB colluded. Of course. and renders his decision unenforceable. evident partiality or corruption 3. 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. but once the colluding began that contract was withdrawn. 1. 2. The general tone of the meeting was that signing free agents is bad. Federal Arbitration Act 1. This does not fall under the narrow realm of where a court can change the decision of the arbiter. 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. MLBPA v. the MLB was ordered to create a $280 mil fund from which injured players could make a claim for. Steve Garvey. 2. Standard from Garvey used too 3. Which resulted in the colluding of teams not to sign players other than their own. v. while Williams countered with a motion to vacate. Union as the Respondent in arbitration 1. 7. Garvey (2001) 1. 1. 3. Williams (2005) 1. SCOTUS: Judicial review of arbitration is very limited. award was procurred by corruption or fraud or undue means 2. not settle it. the commissioner told all GMs that it is dumb to sign long term contracts. they distributed a list of all declared free agents. The appropriate thing to do is to remand the issue. 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. 1. He retired midcontract. 8. Arbitrary and capricious . CoA 11th Circ 1. The District court refused to vacate the arbiter's decision. or prejudicial misbehavior. Sorry MLB but at the GM meetings. 2. but on appeal. The Dolphins. The Dolphins filed to confirm the order. Ricky Williams gets bonuses in his contracts. a retired baseball player. The courts have no business weighing the merits of the grievance. Judicial Response to Arbitration Process 2. 4. As a result of the collusion of the owners in 1985. he appealed. Here the CoA.

2. 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. which is not grounds for vacation. In the present case. the arbiter may have misinterpreted the law a little. like if you had to enforce a union security agreement in a Right to work state. 4. enforcement is contrary to public policy 3. 5. evinces a manifest diregard for the law 1. .

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